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Supreme Court Briefs

No. 99-1257



IN THE SUPREME COURT OF THE UNITED STATES CAROL M. BROWNER ADMINSTRATOR OF ENVIORONMENTAL
PROTECTION AGENCY



V.




AMERICAN TRUCKING ASSOCTIATION INC

BRIEF FOR RESPONDENT

APPALACHIAN POWER COMPANY, ET AL

FILED SEPTEMBER 11,2000


This is a replacement cover page for the above referenced brief filed at the I U.S. Supreme Court. Original cover could not be legibly photocopied


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QUESTIONS PRESENTED


1. Whether the court of appeals properly remanded to the U.S. Environmental Protection Agency ("EPA" or "the Agency") revised National Ambient
Air Quality Standards ("NAAQS") promulgated under Section 109 of the Clean Air Act, 42 U.S.C. § 7409, for the Agency to develop an intelligible
principle for risk management decisions, and whether the court of appeals properly construed the scope of the Agency's discretion in defining those
criteria.

2. Whether the court had jurisdiction to review final action taken by the EPA Administrator under the Clean Air Act which resolved the question of
whether the congressional "Subpart 2" ozone risk management program restricted EPA's authority to adopt and enforce a more stringent ozone
NAAQS.

3. Whether the comprehensive and long-term risk management program Congress enacted to ensure reductions of ozone in the ambient air restricted
EPA's authority to establish a more stringent ozone NAAQS.


II
AMENDED DISCLOSURE STATEMENT

1. Pursuant to Supreme Court Rule 29.6 and the Corporate
Disclosure Statement filed by Appalachian Power Co., et
al., in its Response to the Petition for Writ of Certiorari
filed in this case, the following list (liscIoses additional
parent companies, and publicly held companies that own
10% or more, of any party joining in this brief.

Carolina Power & Light Co.
(1 0% or greater owner: State Street Bank & Trust
Co. Boston)
Illinois Power
(a subsidiary of Dynergy, Inc.)
Kennecott Energy and Coal Co.
(an indirect subsidiary of Rio Tinto PLC)
Kennecott Holdings Corporation
(an indirect subsidiary of Rio Tinto P1.C)
Kennecott Services Company
(an indirect subsidiary of Rio Tinto PLC)
Otter Tail Power Co.
(10% or greater owner: Otter Tail Power Co.
ESOP)

2. The following parties joining this brief have no parent
corporations, and no publicly-held companies have a
10% or greater ownership interest in these parties.

American Chemistry Council (formerly Chemical
Mantifacturers Association)


TABLE OF CONTENTS

Page


QUESTIONS PRESENTED

AMENDED DISCLOSURE STATEMENT

TABLE OF AUTHORITIES vi

GLOSSARY

x
v
CONSTITUTIONAL, STATUTORY AND
REGULATORY PROVISIONS INVOLVED
STATEMENT OF THE CASE 1
I. THE STATUTORY SCHEME 2
A. The NAAQS Program 2
B. Application atid Enforcement of NAAQS 3

II. THE 1997 OZONE AND PM NAAQS
REVISIONS 6
A. The Administrative Record on Ozone 7
B. The Administrative Record on PM 10
C. The Impacts of Standard Revision 15
D. The Administrator's Decisions 16


iii





III. THE D.C. CIRCUIT DECISIONS 19

SUMMARY OF ARGUMENT 20

ARGUMENT 22

EPA IMPROPERLY CONSTRUED THE
STA~ITJTE TO PROVIDE NO LEGAL
STANDARD, OR "INTISLLIGI I3LE
PRINCIPLE," THAT WOULD GUIDE ITS
EXERCISE OF PUBLIC hEALTH RISK
MANAGEMENT JUDGMENT 22

A. EPA Improperly Claims Unfettered Authority to
Exercise Public Health Risk Management
Judgment 24

B. EPA Is Obligated To Identify the Principle that
Guides its Exercise of Rulemaking Authority
Even Where Congress Acts By Broad
Delegation 31

C. There Is Law To Apply To Guide EPA's Exercise
of Risk Management Judgment 33

II. EPA'S REVISION TO THE OZONE NAAQS,
TOGETHER WITH ITS REVOCATION OF
THE EXISTING STANDARD. IS
RE VIE WABLE FINAL AGENCY ACTION

3
5

A. EPA's Determination of Its Authority To Revise
the Ozone NAAQS ls Final Action 36
v

B. EPA's Decision To Replace Subpart 2 Is Ripe. .. 40
III. SUBPART 2 RESTRICTS EPA'S AUThORITY
TO REVISE THE OZONE NAAQS 42

A. Subpart 2's Plain Language Precludes EPA From
Replacing the Existing Ozone NAAQS 42

B. Subpart 2's History and Structure Confirm It Is the
Exclusive Plan for Managing Ozone 47

C. Subpart 2 Renders the Revised Ozone NAAQS
Unlawful 49

CONCLUSION 50

APPENDICES Ia





vi
vii
1'ABLE OF AUTHORITIES
CASES
Page
ALA. Schechter Poultry Corp. v. U,iited States,
295 U.S. 495 (1935) 25
AT&T Corp i'. Iowa (Jtilities Board, 525 tJ.S.
366(1999) 25,35
Abbott Laboratories i'. Gardner, 387 U.S. 136
(1967) 41
Addison v. Holly Ilill Fruit Products, Inc., 322
U.S. 607 (1944) 24
American Lung Association v. EI~A, 134 F.3d 388
(D.C. Cir. 1998) 23, 30
American Power & Light Co. v. SEC. 329 U.S. 90
(1946) 33
American Trucking Ass 'ns v. EPA, 1 75 F.3d 1027
(D.C. Cir.)., modified, 195 E.3d 4 (D.C. Cir.
1999)
passun
Barrick Goldstrike Mines, Inc. v. Browner. 2 1 5
F.3d 45 (D.C. Cir. 2000) 39
Bennett v. Spear, 520 U.S. 154 (1997) 38
Burlington Truck Lines, Inc. i'. United States, 371
U.S. 156 (1962) 23,26
Chevron USA., Inc. v. NRD(', 467 U.S. 837
(1984) 34,35,44
Citizens to Preserve Overton Park, Inc. v. Volpe,
401 U.S. 402 (1971) 28
Clinton i'. New York, 524 U.S. 417 (1998) 30
('ohens 1'. Virginia, 19 U.S. (6 Wheat.) 264(1821) 40
FDA v. Brown & Williamson Tobacco Corp., 120
S.Ct. 1291 (2000) 30, 49
FPCv. Conway, 426 U.S. 271 (1976) 33
Federal Energy Admin. v. Algonquin SNG, Inc.,
426 U.S. 548 (1976) 25
Fidelity Federal Savings & Loan Association v.
DeLa Cuesta, 458 U.S. 141 (1982) 38
HRL Inc. v. EPA, 198 F.3d 1224 (10th Cir. 2000) 38
Harrison V. PPG Industries, Inc., 446 U.S. 578
(1980) 21,38,39,40,41
1-lutchinson v. Proxmire, 443 U.S. 111(1979) 30
INSv. Chadha, 462 U.S. 919(1983) 29
Industrial Union I)epartment, AFL-CIO v.
America,i Petroleum Institute, 448 U.S. 607
(1980) 25,26,29,30
International Union, (IA W v. OSIIA, 938 F.2d
1310(D.C.Cir. 1991) 24
I. W. Hampton, Jr. & Co. v. United States, 276
U.S.394(1928) 25
Kent v. Dulles, 357 U.S. 116 (1958) 25
Loving v. Un ited States, 517 U.S. 748
(1996) 25,30
L@an v. National Wildlife Federation,
497 U.S.
871 (1990) 41
Mackey v. Lan ier Collection Agency & Service,
Inc., 486 U.S. 825(1988) 46
Marbury v. Madison, 5 U.S. (1 Cranch) 137
(1803) 31,33
Mistretta v. United States, 488 U.S. 361
(1989) 25,34
Motor Vehicle Manufacturers Association v. State
Farm Mutual Automobile Insurance Co., 463
U.S. 29 (1983) 23, 30





viii ix


A'ational Broadcasting Co. v. United States, 319
U.S. 190(1943) 33
National ('able Television Association v. United
States, 415 U.S. 336 (1974) 25
New York Central Securities Corp. v. United
States 287 U.S. 12 (1932) 33
Ohio Forestty Association v. Sierra Club, 523
U.S. 726 (1998) 41
Panama Refining Co. v. Ryan. 293 U.S. 388
(1935) 25
Pennsylvania Department of Corrections v.
Yeskey, 524 U.S. 206 (1998) 46
Raines v. Rvrd, 521 U.S. 811(1997) 22
Robertson v. Methow Va 11ev ('itizens
Council, 490
U.S. 332 (1989) 28
Russello v. Un ited States, 464 U.S.
16(1983) 45
SEC v. Chene~y Corp., 332 U.S. 194 (1947) 23,29
Skinner v. Mid-America Pipeline ('o., 490 U.S.
212(1989) 29,32
Touby v. United States, 500 U.S. 160 (1991) 25,
32, 34
United ~States i'. Lopez, 514 U.S. 549 (1995) 31
Vermont Yankee Nuclear Power Corp. v. NRDC.
435U.S.519(1978) 28
Weinberger v. Romero-Barcelo, 456 U.S.
305
(1982) 42
Wyoming Outdoor Council v. United States Forest
Service, 165 F.3d 43 (D.C. Cir. 1999) 39
Yakus v. United States, 321 U.S.,414(1944) 32
Youngstown Sheet & Tube Co. v. Sawyer, 343
115. 579 (1952) 31
Zemelv. Rusk, 381 U.S. 1(1965) 25
STATUTES

The Clean Air Act, 42 U.S.C. §§ 7401 et seq.
(1994&Supp. 111 1997)
CAA § 101,42 U.S.C. § 7401 34
CAA § 101(b), 42 U.S.C. § 7401(b) 1,24
CAA § 107(d), 42 U.S.C. § 7407(d) 42, 43, 44, 45
CAA § 107(d)(1), 42 U.S.C. § 7407(d)(l) 43
CAA § 107(d)(l)(A), 42 U.S.C. § 7407(d)(l)(A) 3
CAA § 107(d)(1)(B), 42 U.S.C. § 7407(d)(I)(B) 3
CAA § 107(d)(3), 42 U.S.C. § 7407(d)(3) 42, 43
CAA § 107(d)(4), 42 U.S.C. § 7407(d)(4) ... 42, 43,
44, 45
CAA § 108, 42 U.S.C. § 7408 3, 22, 35, 49
CAA § 108(a), 42 U.S.C. § 7408(a) 2
CAA § 108(a)(2). 42 U.S.C. § 7408(a)(2) 3
CAA§ 109,42U.S.C. §7409 21,24,28,34,35
CAA § 109(b), 42 U.S.C. § 7409(b) 3. 22, 49
CAA § 109(d), 42 U.S.C. § 7409(d) .. 3, 36, 38,
46, 49, 50
CAA § 110(a), 42 U.S.C. § 7410(a) 4
CAA § I l0(a)(2)(I), 42 U.S.C. § 7410(a)(2)(1) 4
CAA §§ 171-179B, 42 U.S.C. §§ 7501-7509a 4
CAA § 172(a), 42 U.S.C. § 7502(a) 44
CAA § I 72(a)( I )(C), 42 U.S.C. § 7502(a)( 1 )(C) 4, 43
CAA § 172(a)(2)(D), 42 U.S.C. § 7502(a)(2)(D) 43
CAA § 175A(d), 42 U.S.C. § 7505a(d) 5
CAA § 181,42 U.S.C. § 7511 43
CAA § 18 1(a), 42 U.S.C.
§ 7511(a) 37, 42, 44, 45, 46,
48, 49
CAA § 181(a)(l), 42 U.S.C. § 751 1(a)(1) 43,45
CAA § 181(h),42U.S.C. § 7511(b) 37,44,46,48
CAA § 181(b)(1), 42 1J.S.C. § 751 l(b)(1) 43
CAA§§ 181-185B,42U.S.C.§§7511-7511f 5





x xi
CAA§182,42U.S.C.§7511a S
CAA § I 82(a)-(e), 42 U.S.C. § 7511 a(a)-(e) 48
CAA §§ 182-185B, 42 U.S.C. §§ 7511a-7511f
CAA § 183(g), 42 U.S.C. § 7511 b(g) 48
CAA§ 184, 42 U.S.C.§7511c 48
CAA § 184(a), 42 U.S.C. § 7511 c(a) S
CAA § 184(b)(1)(a), 42 U.S.C. § 751 lc(b)(1)(a) 5
CAA§§ 186-187,42U.S.C.§§7512-7512a 46
C'AA § 188-190, 42 U.S.C. § 7513-7513b 46
CAA § 191,42 U.S.C. § 7514 46
CAA § 307(b), 42 U.S.C. § 7607(h) I, 39, 40, 41
CAA § 307(b)(l), 42 U.S.C. § 7607(b)(1) 38
CAA § 307(d)(3), 42 U.S.C. § 7607(d)(3) 13
CAA § 307(d)(9), 42 U.S.C. § 7607(d)(9) 23

FEDERAL REGULATIONS
40C.F.R.§50.9(b)(1999) 1,18,21,37,39
4{)C.F.R. § 50.10(1999) 18, 21,37

FEI)ERAL REGISTER
43 Fed. Reg. 26964 (1978) 7
52 Fed. Reg. 24634 (1987) 6
52 Fed. Reg. 24642 (1987) 7
57 Fed. Reg. 13525 (1992) 48
58 Fed. Reg. 13008 (1993) 6
58 Fed. Reg. 13015 (1993) 7
61 Fed. Reg.65659(1996) 17
62 Fed. Reg. 38421 (1997) 17
62 Fed. Reg. 38424 (1997) 39
62 Fed, Reg. 38653 (1997) 7, 16
62 Fed. Reg. 38656 (1997) 6
62 Fed. Reg. 38665 (1997) 7
62 Fed. Reg. 38670(1997) 15,17
62 Fed. Reg. 38675 (1997) 17,27
62 Fed. Reg. 38676 (1997) 12
62 Fed. Reg. 38683 (1997) 17
62 Fed. Reg. 38683-95 (1997) 16
62 Fed. Reg. 38688 (1997) 17, 18,21,27
62 Fed. Reg. 38857 (1997) 7,16
62 Fed. Reg. 38858 (1997) 17
62 Fed. Reg. 38863 (1997) 7
62 Fed. Reg. 38867 (1997) 9
62 Fed. Reg. 38868 (1997) 17,27
62 Fed. Reg. 38873 (1997) 18
62 Fed. Reg. 38877 (1997) 17
62 Fed. Reg. 38878-85 (1997) 16
62Fed. Reg. 38883 (1997) 17, 18, 21,27
62 Fed. Reg. 38884-85 (1997) 18
62 Fed. Reg. 38894-95 (1997) 18

LEGISLATIVE HISTORY

136 Cong. Rec. 1 30 (Jan. 23, 1990), reprinted in 4
Sen. Comm. on Env't and Pub. Works, A
Legislative Ilistorv of the Clean Air Act
Amendments of 1990 (Comm. Print 1993)
(Sen. Chafee) 4, 47
136 Cong. Rec. H 12867 (daily ed. Oct. 26, 1990)
(Rep. Fields), reprinted in 1 Sen. Comm.
on
Env't and Pub. Works, A Legislative Ilistory
of the Clean Air Act Amendments of /990
(Comm. Print 1993) 47





xii

H.R. 3030. 101st Cong., §§ 101(a), 103, reprinted
in 2 Sen. Comm. on Env't and Pub. Works, A
Legislative 1-listory of the Clean Air Act
Amendments of /990 (Comm. Print 1993) 45
H.R. Rep. No. 101-490, pt. I (1990), reprinted in 2 Sen.
Comm. on Env't and Pub. Works, 10~st Cong., 2d Sess.,
A Legislative Ilistori' of the ('lean Air Act
Amendments of 1990
(Comm. Print 1993) 4, 45, 47, 48
H.R. Rep. No. 101-952 (1990), reprinted in I Sen.
Comm. on Env't and Pub. Works, 103d
Cong., 2d Sess., A Legislative IIistor~ of the
Clean Air Act Amendments of 1990 (Comm.
Print 1993) 4, 45
S. Rep. No. 91-1196 (1970), reprinted in I Sen.
Comm. on Pub. Works, A Legislative History
oft/ic C:lea,, Air Amendments of /970 (Comm.
Print 1974) 40
5. 1630, 101st Cong., §§ 101, 107, reprinted in 3
Sen. Comm. on Env't and Pub. Works, A
Legislative History of the Clean Air Act
Amendments of 1990 (Comm. Print 1993) 45

MISCELLANEOUS

Committee on the Institutional Means for Assessment of
Risks to Public Ilcalth, National Research Council,
Risk Assessment in tile Federal Government:
Managing the
Process (1983)

2
6
EPA, Air Quality Criteria for Particulate Matter
(1996) 11,12,13
xiii

EPA, Regidatomy Analyses for the Particulate
Matter and Ozone National Ambient Air
Quality Standards and Proposed Regional
Haze Rule(l997) 15
EPA, Responses to Significant C'oniments on the
1996 Proposed Rule on the National Ambient
Air Quality Standards for Particulate Matter
(July 1997) 16
EPA, Responses to Significant Comments on the
National Ambient Air Quality Standards for
Ozone (July 1997) 16
EPA, Review of National Ambient Air Quality
Standards for Ozone (1996) 6, 7, 9
EPA, Review of the National Ambient Air Quality'
Standards for Particulate Matter (1996)11, 12, I 3,
14 Gary Taubes, Epidemiology Faces Its Limits, 269
Science 164(1995) 12
L. Bressman, Schechter Poultry at the
Millennium: A I)elegation Doctrine for the
Administrative State, 109 Yale L.J. 1399
(April 2000) 29, 35
Leland Deck, et al., A Particulate Matter Risk
Assessment for Philadelphia and Los
Angeles
(1996) 14 Letter from Dr.
George T. Wolff, Chair, CASAC,
to Hon. Carol M. Browner (Nov. 30, 1995) 8,9, 10
Letter from Dr. George T. Wolff, Chair, CASAC,
to Hon. Carol M. Browner (Jun. 13, 1996) ..11,
14,15 Memorandum from Harvey M. Richmond to
Karen Martin (Feb. 11, 1997) 9
U.S. Dep't of Comnierce, Statistical Abstract of
the United States (119th ed. 1999) 15,16






Cd
~
O
S
S
A
R
Y

xiv
W. Wilson, ('ongressional Government (1885) 30


The following is a glossary used in this brief.

Act

Administrator



Agency


A PC
CAA
CASAC


EPA


NAAQS


OJA


OS P
of acronyms and abbreviations


Clean Air Act

Administrator of the United
States Environmental
Protection Agency

United States Environmental Protection
Agency

Appalachian Power Co., et
al.
Clean Air Act
Clean Air Scientific Advisory Committee

United States Environmental Protection Agency

National Ambient Air Quality Standards

Joint Appendix in D.C. Cir. Case No. 97-1441

Ozone Staff Paper
xv






P
M
I,,







P
M
2,



P
M
J
A
P
PM
PMS
P
Subpart I
Subpart 2

xvi

Particulate Matter

Particulate Matter with an
aerodynamic diameter less
than or equal to 10 microns

Particulate Matter with an
aerodynamic diameter less
than or equal to 2.5 microns

Joint Appendix in D.C. Cir.
Case No. 97-1440

Paris Per Million

Particulate Matter Staff
Paper

Subpart I of Part D of Title I
of the Clean Air Act

Subpart 2 of Part D of Title I
of the Clean Air Act


CONSTITUTIONAL,
STATUTORY AND
REGULATORY
PROVISIONS INVOLVED

The following additional
statutory and regulatory
provisions are involved in this
case: CAA §§ 101(b), 182-
185B, and 307(b); 40 C.F.R. §
50.9(b).'

STATEMENT OF THE CASE

A fundamental principle of
our system of government is
that executive branch agencies
may exercise only that power
that Congress has delegated to
them. While Congress oflen
delegates in broad terms in areas
that are technically and
scientifically complex, that
delegation must specifically
provide-—or the executive
branch agency must derive from
the authorizing legislation -an
intelligible principle that
constrains the agency's
discretion in a manner
consistent with the
congressional delegation. Just as
no executive branch agency
may exercise a policy judgment
that Congress has not delegated
to it, no executive branch
agency may substitute its policy
judgment for that of Congress.
The actions of the
Environmental Protection
Agency ("EPA" or "the
Agency") at issue here violate
this principle. In 1997, citing
the Clean Air Act ("CAA" or
"the Act"), 42 U.S.C. §§ 7401
et seq., and the policy judgment
of its Administrator, EPA
replaced existing National
Ambient Air Quality Standards
("NAAQS") for ozone and
particulate matter ("PM") with
revised standards. In each
instance, while EPA
characterized ranges of health
risks associated with alternative
standards, the Agency did not
articulate any principle based on
the Act to guide its exercise of
risk

These provisions are reproduced in
the attached Appendix ("App."), or
the Appendix to Conditional Cross-
Pet. in Case No. 99-143 1.





2 3
management judgment in selecting standards from that range
of risks. By revising the ozone NAAQS, EPA also replaced the
statutoty program for re(lttcing ozone enacted by Congress in
1990 with a more stringent program of
EPA's own creation.
Because EPA's actions are inconpatible with the scope of
authority delegated to that Agency by Congress, they must be
vacated. The Court should instruct EPA that Congress has
not authorized it to establish a more
stringent ozone NAAQS and that, in
promulgating a NAAQS, it must articulate
the principle, based on the Act, that it
applies in exercising its risk management
judgment.2

I. TIlE STATUTORY SCHEME.

A. The NAAQS Program.
The NAAQS program is the centerpiece of the Clean Air
Act. It requires a joint effort by EPA and the States, with
EPA responsible for establishiiig NAAQS and the States
responsible for implementing them.
NAAQS apply to air pollutants that EPA finds "may
reasonably be anticipated to endanger public health or
welfare" and that result from "numerous or diverse" mobile
and stationary sources. CAA § 108(a). Prior to setting
standards, EPA must prepare a "criteria document" that
"accurately reflects the latest scientific knowledge useful in


2 While the reviewing court correctly objected to EPA's constniction of
the statute as providing no intelligible principle for risk management
decisions, as Appalachian Power Co., er a!., ("APC") and American
irucking Associations, Inc., et at., ("AlA") explain in Case No. 99-1426, the
Act provides the basis for such a principle. Acceptance of the arguments in
Case No. 99-1426 regarding the proper construction of the Act wo~ild
require that the revised standards at issue here be vacated.
indicating the kind and extent of all identifiable effects on
public health or welfare" of varying quantities of the pollutant
in the ambient air. CAA § 108(a)(2); see also Br. for
Resp'ts Appalachian Power Co., et al., in Support of Pet'rs
(99-1426)6,37-39 Ihereinafter"APC Br."i.
Based on the criteria document, the Agency sets "primary"
NAAQS at a level "requisite to protect the public health" with
an "adequate margin of safety," and "secondary" NAAQS at a
level "requisite to protect the public welfare from any known
or anticipated adverse effects." CAA § 109(b). NAAQS may
be revised "as may he appropriate" in accordance with §§
108 and 109(b). CAA § 109(d); see APC Br. 39-42.
In promulgating or revising NAAQS, EPA must consult an
independent scientific review committee-- -the Clean Air
Scientific Advisory Committee ("CASAC")—that advises the
Agency on (I) the "adeqtiacy" and "basis" for existing and
revised NAAQS, (2) "the relative contribution to air pollution
concentrations of natural as well as anthropogenic activity,"
and (3) "any adverse public health, welfare, social, economic,
or energy effects" from different approaches to NAAQS
implementation. CAA § 109(d).
B. Application and Enforcement of NAAQS.
In order to implement a NAAQS, States are responsible
for identifying and submitting to EPA a list of areas to be
designated "attainment" (meeting the standard),
"nonattainment" (not meeting the standard), or
"unclassifiable." CAA § 107(d)(l)(A). EPA then promulgates
these designations, making "such modifications as the
Administrator (leems necessary." CAA § 107(d)(l)(B). At that
time, EPA "may classify" nonattainment areas to provide an
attainment date or "for other purposes" unless
"classifications are specifically





4
provided tinder other provisions" of the Act. CAA §
172(a)(l)(C).
Once areas are designated and, if appropriate, classified
pursuant to the Act, States are responsible for adopting State
[mplementation Plans ("SIPs") that provide for
"implementation, maintenance, and enforcement" of the
NAAQS. CAA § 110(a). For areas that are designated
nonattainment, the SIP must "meet the applicable
requirements of Part D." CAA § 1 l0(a)(2)(l). General
requirements for nonattainment area plans are found in
Subpart I of Part D of Title I of the Act. CAA §§ 171-I
79B.
In 1 990. Congress recognized that, for a variety of
reasons, the general classification and planning provisions of
Part D of the Act were not appropriate to address ozone
nonattainment and ozone "maintenance" based upon the
established I-hour ozone NAAQS.3 Reflecting the failure of
many areas to attain the ozone NAAQS,4 as well as Congress'
determination that massive economic dislocation and
impossible deadlines driven by the general planning
provisions were neither necessary nor appropriate responses
to ozone health risks,5 Congress in 1990 designated the 1977


FIR. Rep. No. 101-952, at 335 (1990), reprinted in I Sen. Comm. on Env't
and Pub. Works, 103d Cong.. 2d Sess., .4 Legislative i/is/oP-v of the
(i/eon Air Act Amendments of 1990, at 1785 (Comm. Print 1993)
fhereinafter 1990 Legis. Hist.j, OJA 3546; see atso HR. Rep. No. 101-
490, pt. 1. at 146-49 (1990), reprinted in 2 1990 Legis. lust, supra.
3170-72, OJA 3557-59; 136 Cong. Rec. 130-33 (Jan. 23, 1990), reprinted
in 4 1990 Legis. If ist, sup ra, 4832-39 (Sen. Chafee); APC Br.
15-17.

FIR. Rep. No. 101-490, pt. 1, at 229-31, reprinted in 2 /990 Legis. Hist
upro note 3, at 3253-55, OJA 35~~8-3600.

See supra note 3.
S

Amendments' General Provisions "Subpart 1" of Part D of
Title I of the Act, and added a new Subpart 2 to Part D of
Title 1. Subpart 2 "specifically provide[s]" for ozone
classifications and, based on those classifications, for detailed
regulatory requirements that Congress had concluded would
represent a pragmatic solution to reducing ozone
concentrations throughout the country. See CAA §§ 181-
185B.
Subpart 2 comprehensively addresses classification of areas
and control programs for ozone. It explains how areas
designated nonattainment for ozone are to be regulated, and includes
specific regulatory programs for volatile organic compounds
and nitrogen oxides, substances that contribute to ozone
formation. See, e.g., CAA § 182.
Subpart 2 also imposes requirements on areas that attain
the ozone NAAQS. As an example of the specificity of the
balances struck by Congress even for "attainment areas, each
metropolitan area with a population of 100,000 or greater in
the Northeastern States "ozone transport region" established
by Congress in Stthpart 2 must adopt an enhanced vehicle
inspection and maintenance program. CAA § 184(a),
(h)(1)(A). And nonattainment areas that achieve attainment
are subject to "maintenance plans" that "include a
requirement that [if the NAAQS is again violated,J the State
will implement all measures [including Subpart 2
requirements]. . . that were contained in the State
implementation plan for the area before redesignation" to
attainment. CAA § 175A(d).
In short, Congress "stood up to the plate" in Subpart 2
and defined a risk management program to resolve the health
risks from ozone, rather than continuing the politically "feel
good" deadlines and control strategies that failed under
Subpart 1. Subpart 2 is Congress' comprehensive and long-





6 7
term program to reduce health risks associated with ozone
concentrations in the ambient air.

II. THE 1997 OZONE AND PM NAAQS REVISiONS.

Both ozone and PM have been the subject of NAAQS
since the beginning of the ambient standards program. Ozone
has been subject to a 1-hour NAAQS of 0.12 ppm that EPA
established in 1979 and reaffirmed in 1993 as protective of
public health with an adequate margin of safety. 58 Fed. Reg.
1 3008, OJA 3449. PM has been subject to annual and 24-
hour NAAQS that use PM111 as a size indicator, and that were
a(lopted in 1987 in place of earlier, less stringent standards
measuring PM as Total Suspended Particulate (TSP). 52 Fed.
Reg. 24634, PMJA 208.
In its brief. EPA asserts that scientific evidence that has
emerged since these NAAQS were last reviewed shows that
the existing standards fail to protect "millions of Americans
from adverse health effects." EPA Br. 2. According to EPA,
"a wide range of a(lverse health effects were occurring at
concentrations below the pre-exisfing PM and ozone
NAAQS." Id. 31 (emphasis added). But these assertions are
not the stated basis for the revised NAAQS and, indeed, do
not reflect the rulemaking records.6
Far from reflecting a response to (lemonstrated adverse
public health effects, EPA's rulemaking determinations
represent a "policy choice" to provide more "margin of
safety" in light of "uncertainties associated with inconclusive
scientific and technical information" and "hazards that

6 62 Fed. Reg. 38656. PMJA 6 (PM risk estimates 'should not be viewed as
demonstrated health impacts"); see a/sn EPA, Review of National
A'nhient Air Quality Standards for Ozone lt)4 (1996) [hereinafter
OSP], OJA 1914 (ozone risk estimates are not "demonstrated health
impacts").
research has not yet identified." 62 Fed. Reg. 38857, OJA 2;
id. 38653, PMJA 3,7 This is because, contrary to EPA's
assertions, the rulemaking records contain estimates of health
risk, not demonstrated adverse public health effects that are
occurring as a result of exposure to these pollutants.8 The
existence of such risks was recognized in previous NAAQS
proceedings and, as EPA's risk assessments show, are also
addressed by the existing NAAQS.9
As a result, as the record of these proceedings and the
Agency's decisions show, this case is not about whether or not
EPA can regulate based on predictions of health risk. Rather,
it is about EPA's failure to exercise reasoned public health risk
management judgment as to the level of protection that is
"appropriate" among a range of "risk" options.
A. The Administrative Record on Ozone.
Reflecting that the rulemaking to revise the ozone NAAQS
was based on sniall, predicted health risks, the

See a/so EPA Br. (D.C. Cir. 97-1441) 35 (EPA "appropriately applied
margin of safety considerations in choosing among options."); id. 48,

See, e.g., 62 Fed. Reg. 38665, PMJA 15 ("[TThe
Administrator believes that it is more appropriate to provide additional
protection against the risk posed by PM by adding new standards for
the fine fraction of PM10"); id. 38863, OJA 8 (explaining that ihe
Administrator sought to reduce risk).

See 58 Fed. Reg. 13015. OJA 3456 (lung function changes even on
days when the NAAQS was not exceeded); 52 Fed. Reg. 24642,
PMJA 216 (noting the data suggest a "continuum of response" with
the risk "decreasing with concentration"); .oee also OSP, supra note 6,
at 24, OJA 1834 ("Prior to completion of the previous review ... there
was a substantial data base defining health effects of [ozone]."); 43
Fed. Reg. 26964, OJA 3518 (discussing range of health risks
considered in establishing 1979 NAAQS). Nor do the revised
standards eliminate the risk. EPA has not identified any level that is
without risk for either pollutant.





8

Administrator's science advisers (CASAC)
questioned the need for the revised ozone NAAQS. As
CASAC concluded:
[Tihere is no 'bright line' which (listinguishes any of the
proposed standards (either the level or the number of
allowable excee(lences) as being significantly more
protective of public health. For example, the differences
in the percent of outdoor children . responding between
the present standard and the most stringent proposal . .
are small and their ranges overlap far all health

The administrative record on ozone sheds light on CASAC
's concerns regarding appropriate standard revisions. The
record shows that, while attaining the
existing 1 -hour ozone NAAQS would not eliminate
all health risk associated with exposure to ozone,
a new NAAQS would not necessarily reduce the
remaining risk, and might even increase it. 1'he question EPA
confronted therefore was what level of health "risk" is
"requisite" to protect the "public health" given this record.
EPA's own risk assessment found that the range of
estimated risk (expressed as the number or percent of
in(lividtIals in the sensitive population (otitdoor children)''

0 Letter from Dr. George T. Wolff, Chair, C'ASAC, to Hon. Carol M.
Browner 3 (Nov. 30, 19Q5) thereinafter CASAC Ozone Letter], OJA 238
(emphasis added). EPA is simply wrong when it states that CASAC "did
not mean" that 'the public health effects were the same at any level" within
the range. See EPA Br 33 n.23.

Because the risk assessment focuses on the sensitive subpopulation
and because it took into account the full range of (lose/response
information contained in the health studies, it reflects responses by
sensitive, as well as typical, individuals.
9

predicted to respond to ozone at least once a year)
overlapped with the range of estimated risk if EPA retained
the existing standard.'2 The overlap ocetirred for all the
various types of health effects that were analyzed. In fact, for
approximately one-third of the population evaluated, the new
standard could place the population at greater risk than if the
standard remained unchanged.'3
Thus, EPA staff acknowledged that ranges of estimated
risk were little different for the 1-hour and 8-hour ozone
NAAQS.'4 In fact, the staff concluded that an 8-hour NAAQS
of 0.09 ppm (which they indicated would be roughly equivalent
to the 1 -hour NAAQS) "would reduce estimated exposures of the
at-risk population sufficiently to provide some margin of
safety."'5
CASAC agreed. The Committee endorsed the full range of
options suggested by the staff, including no increase in the

ft?See CASAC Ozone Letter, supra note tO. at 3, OJA 238. Moreover,
this risk assessment did not even comprehensively address the
uncertainties in
the data. APC Br. 11 & nn.16-20; see also CASAC Ozone Letter, supra
note 10, at 2, OJA 237 (large uncertainties exist in the risk estimates);
OSP, supra note 6, at 55, OJA 1865 (noting that children do not
appear to experience the symptoms from ozone exposure that are modeled
in the risk assessment).

"62 Fed. Reg. 38867, OJA 12; OSP, supra note 6, at 80, OJA 1891.
Similarly, asthmatic hospital admissions in New York City were
predicted either to decrease slightly (0.2%) or increase slightly (0.03%)
depending on the form of the 0.08 ppm 8-hour standard. (EPA selected a
form for the standard that was between the two options evaluated.) See
Non-State CAA Pet'rs and Intervenors' Br. (D.C. Cir. 97-1441) 52.

'~ OSP, supra note, 6, at 125. 130, OJA 1935, 1940; Memorandum from
harvey M. Richmond to Karen Martin 5 (Feb. 11, 1997). OJA 2318.

' (iISP, s~~pra note 6, at 167, (JIA 1977; see also APC Br. 10-13, for
further discussion of the ozone record.





10

stringency of the standard.'6 In fact, of the ten CASAC panel members
who expressed their opinions, fottr specifically recommended an 8-
hour NAAQS rio more stringent than the existing NAAQS and three
others included 0.09 ppm within their recommended range.'7 Because
of overlapping risk estimates, CASAC indicated that EPA's selection
of a specific standard would have to reflect "policy
judgment."'6
But what decisional standard would govern that "policy
judgment"? CASAC provided no answer and was even told by
EPA not to provide information called for by the Act (e.g.,
"implementation impacts") that could inform that policy
ttdgment.
B. The Administrative Record on PN'L
Although recommending the adoption of a NAAQS for
fine PM, CASAC noted "the many unanswered questions and
uncertainties regarding the issue of causality" of health effects
by the pollutant, which created uncertainty about the level of
health l)roteetion tinder a revised standard. These


6 CASAC Ozone Letter, supra note 10, at 3, OJA 238.

'~ td,, OJA 238. Thus, whatever concerns CASAC may once have had with
the adequacy of the protection provided by the existing standard, see EPA
Ri. 13 (citing a letter written by CASAC in 1Q89), after reviewing the latest
scientific information as presented in the OSP and Criteria Pocument the
nia~ority of CASAC was comfortable with recommending a standard at the
stringency of the existing one.

'~ CASAC Ozone Letter. sm*pra note 10, at 3, OJA 238.
'~ Compare CASAC Ir. (3/21/95), 36-39, OJA 253-54 (EPA's Gleason
states ihat CASAC's responsibilities concerning implementation strategies
are "irrelevant to how we set standards), with CASAC Tr, (3/19/95), 37-
38, OJA 285-86 (CASAC member Price notes a "bit of a conflict" with EPA
in that there "is not thai review" of the "the interface of science and
control strategy issues" called for by the Act).
11

uncertainties affecting EPA's risk characterization included:
"exposure misclassification, measurement error, the influence
of confounders, the shape of the dose-response function, the
lack of an understanding of toxicological mechanisms, and
the existence of possible alternative explanations.' '20 As
a result, CASAC was unable to form a consensus on
appropriate NAAQS for fine PM.2'
Confirming CASAC's concerns, EPA staff "einphasize[dj
the unusually large uncertainties" associated with
establishing standards for PM25.22 These uncertainties included
the "lack of demonstrated mechanisms" that "limits
judgments about causality of effects and appropriate
concentration-response models to apply in quantitatively
estimating risks" associated with PM 2.5' 23
EPA staff also acknowledged "the question as to whether
or to what extent the observed effects attributed to PM
exposures are confounded by other pollutants commonly
occurring in community air."24 The EPA staff noted that


211 Letter from Dr. George 'I'. Wolff, Chair, CASAC, to lion. Carol M.

Browner 3 (June 13, 1996) [hereinafter CASAC PM Letter], PMJA 3163
temnphasis added).

2I~(/ 2, PMJA 3162.

2? EPA, Review of the National Ambient Air Quality Standards for
Particulate Matter VII-41 (1996) [hereinafter PMSP], PMJA 2153
(emphasis added).
!d. VII-42, PMJA 2154.

~' Id., PMJA 2154. A "confounder" in an epidemiological study is an
"independent risk factor [e.g., another pollutant] for the outcome" (e.g.,
mortality) that is "associated with the exposure variable"
(e.g., ambient I'M). EPA, Air Quality Criteria for Particulate Matter
12-24 (1996)
Ihereinafter PMCD], PMJA 1398. Failure to consider a "confounder" in





12 13
several authors "have demonstrated that it may not be
possible to separate individual effects of multiple
pollutants."25 The staff recognized that, even when
statistically significant, reported associations between
particulate matter and health effects were "weak" and the
"'relative risks"' were "consistently 'small"'26 indeed, so small
that epidemiologists are generally reluctant to believe stich
risk findings.27
Furthermore, while EPA emphasizes that a number of
epidemiological studies addressed PM effects, EPA Br. 9,
most of those studies involved PM size fractions other than
the PM25 fraction that EPA chose to regulate.28 And most of

an epidemiological study may produce inaccurate or exaggerated
associations with the variable of concern (i.e., PM).

25 PMSP, s~Jpra note 22, at VII-42 to VII-43, PMJA 21 54-55.

'~ PMCD, supra note 24, at 12-346 to 12-347, PM.IA 1720-21.
those studies ignored the important effect of confounders
(e.g., the presence of other pollutants or other variables that
could have produced the effect). See supra note 27.
The record showed that in six of seven studies in which
confounders were fully analyzed, the initial association
reported between PM and health effects lost statistical
significance.29 As the staff acknowledged, therefore, studies
that failed to consider a full array of confounders "probably
overestimate[d] the PM effect."3" Yet, during the
nilemaking, EPA consistently denied to the public data
needed to analyze the role of confounders in the critical
PM2, studies.3'
Although EPA put forward quantitative projections of
the health impacts of low levels of PM25, the uncertainties in
the science were so great that Agency staff warned that its
"risk estimates... should not be interpreted as precise
measures of risk."92 Similarly, CASAC noted that the risk
assessment did


27 See Gary Taubes, Epidemiology Faces Its Limits, 269
Science 164, 168

(1995), PMJA 3134. While EPA argues that the concept of statistical
significance can be used to separate associations that "may reflect cause-
and-effect relationships" from those that may be the product of "chance,"
EPA Br. 9 n. 10, statistical significance "only takes into consideration
random variation in the data. It ignores the systematic errors, the biases
and confounders, that will almost invariably overwhelm the
statistical variation,' Taubes, .supra. at 168, PMJA 3134 (citing
Norman Breslow, University of Washington). In short, the
existence of a statistically significant association does not
establish either causality or the
significance of health risk.
20 See 62 Fed. Reg. 38676, PMJA 26 (citing PA ISP, supra note 22, at
V60h to V-~6Oc, V-61a, PMJA 2023-24. 2026). While several studies are
listed in the tables relied on by EPA, only Schwartz, e~' al. (1996),
Thurston, et at (1994). Schwartz, et at. (1994). l)ockery. et a!. (1993),
and Pope, et a!. (1995) reported a statistically significant relationship
with PM2,. Two studies in those tables reported no statistically significant
association between PM2 and the studied effects, Ostro, et al.
(1993) and Neas, et. al. (1995). The daily PM2, levels were as high in the
studies that did not report statistical significance as in the
ones that did.
29 See Non-State Fine PM Pet. Br, (D.C. Cir. 97-1440) 17.

'0 PMCD, supra note 24, at 12-333, PMJA 1707.

" EPA did not make the data available even though EPA itself
had funded the most critical studies and despite a requirement
that "the factual data on which the proposed rule is based" be
placed in the public docket. See CAA § 307(d)(3). EPA's
failure to place these data in the docket, and its implications
for the validity of the PM2, standards, was one of the issues that
the lower court said it would resolve only after EPA responded to
the court's remand. Non-State Fine PM Pet. Br. (D.C. Cir. 97-
1440) 33-44; 175 F.3d 1034, Pet. App. Sa.
02 PMSP. supra note 22, at VI-l. PMJA 2051 (emphasis added). Among
the uncertainties acknowledged by EPA staff were
"uncertainties in the concentration-response" relationship, use of
ambient concentrations "as a





14

not include all of the uncertainties and that the combined
effect of those uncertainties was not examined.'3 Thus, EPA's
risk assessment was simply "premised on the assumption
that PM (measured as PM1, and PM25) is causally related to
the health effects observed in the epidemiological studies
and/or that PM is a useful index for the mixture of pollutants
that is related to these effects."'4
For these reasons, CASAC observed that EPA's risk
assessments were of "limited value" for identifying an
appropriate standard~ and noted "the existence of possible
alternative explanations" for the effects examined in the risk
assessment. '~ While most of the science advisers endorsed the
concept of a PM,, standard, only 2 of 21 specifically
recommended an annual NAAQS as stringent as the one EPA




surrogate for population exposures." the lack of site-specific risk
estimates for PM2 and uncertain estimates of baseline incidence of
hospital admissions and respiratory symptoms. U. at VI-l, \'l-7,
VI-14, Vl-21, PMJA 2051, 2058, 2066, 2073. EPA assumed
there was no threshold for the effects. PMSP, supra note 22, at
VI-16; PMJA 2068.

" CASAC PM letter, supra note 20. at 3, PMJA 3163; see also
Leland Deck, et al., A Particulate Matter Risk Assessment for
Philadelphia and Los Angeles 105 (1996), PMJA 3362 (co-pollutants
were not addressed).

'~ PMSP, supra note 22, at VI-l, PMJA 2051 (emphasis added).
However. CASAC noted "the many unanswered questions and
uncertainties regarding the issue of causality." CASAC PM letter,
supra
note 20. at 3, PMJA 3163.

" CASAC PM Letter, supra note 20. at 3, PMJA 3163. EPA's reliance on this
risk assessment to quantify health effects from PM concentrations below
the previous standards, EPA Br. 2, is therefore unwarranted.

~ CASAC PM Letter. supra note 20, at 3. PMJA 3163.
15

chose to make its controlling standard." In an observation that
reflected the nature of thc record, CASAC also noted that any
decision on NAAQS revision would require "policy
judgments."'8
C. The Impacts of Standard Revision.
In contrast to the uncertain health risk and inconclusive
science on which the Administrator's decisions were based, the
ozone and PM NAAQS revisions would impose real and
substantial burdens on society. For example, EPA observed in
its regulatory impact assessment that the revised standards
would create implementation difficulties and may be
unachievable in many areas.30 Nevertheless, the Agency
estimated that the revised ozone and PM NAAQS could
together cost as much as $47 billion annually.4 Others
(including the Council for Economic Advisors) estimated that
the revised NAAQS would be even more expensive. See APC
Br. 17-19. By comparison, only $18 billion were spent on
medical research in the U.S. the year the NAAQS were
promulgated. See U.S. Dep't of Commerce, Statistical
Abstract of the United States 118, Table 163 (119th ed.
1999). Of this, $16.5 billion were government sponsored,

'~ Id. at 5, PMJA 3165; see also 62 Fed. Reg. 38670, PMJA 20 (explaining
the annual NAAQS will be "the generally controlling standard").
iR CASAC PM Letter, supra note 20, at 4, PMJA 3164. As with ozone,
however, see supra note 19, EPA's science advisers did not address
factors such as implementation impacts that could have informed EPA's
policy judgment.
EPA, Regulatory Analyses for the Particulate Matter and Ozone
National Ambient Air Quality Standards and Proposed Regional
Haze
Rule FS-12, 7-2, 7-5 (1997), OJA 2919, 2930-31.

"' Id. ES-12 to ES-13, OJA 2919-20.





16 17
and $1 .5 billion were privately sponsored. Id. These figures
illuminate the disparity between the investments that would
be compelled in this case to address uncertain health risks and
the government's total investment in medical research
directed at demonstrated adverse public health effects.
D. The Administrator's Decisions.
The Ozone and PM NAAQSJhe Administrator explained
that her decisions to revise the NAAQS reflected her
judgment as to how much protection is "sufficient[ j" in light
of "uncertainties associated with inconeltisive scientific and
technical information" and "hazards that research has not yet
identified." 62 Fed. Reg. 38857, OJA 2; id. 38653 PMJA 3.
But rather than explain what principles guided her exercise of
"policy judgment" in selecting among regulatory options
based upon uncertain predictions of risk, the Administrator
addressed at length the factors that did not guide her
judgment. These factors, which could have provided a
principled approach to making risk management decisions,
included the cost and technological feasibility of controls, the
disruptive impact of replacing the congressional ozone
reduction program with a new program to be devised by EPA,
and the public health "disbenefits" of more restrictive
standards.4'
The Administrator did explain the factors that she used to
characterize the health risk associated with PM and ozone.
These included "the nature and severity of the health effects


~' 62 Fed. Reg. 38878-85, OJA 23-30; id. 38683-95, PMJA 33-45;
EPA, Responses to Significant Comments on the National A,nhient
Air Qualit'~' Standards for Ozone 128-33 (July 1997), OJA 210-15;
EPA, Responses to Significant ('omments on the 1996 Proposed Rule
on the National Ambient Air Quatity Standards fir Particulate Atatter
112 (July 1997), PMJA 312.
involved, the size of the sensitive population(s) at risk, the
types of health information available, and the kind and degree
of uncertainties that must be addressed."42
Based on these factors and the scientific record described
above, the Agency presented ranges of risks for alternative
standard levels.43 For ozone, EPA selected a revised standard
from this range at a level that, in the Agency's judgment,
reflected the level at which "public health impacts . . . [are]
important and sufficiently large as to warrant a standard.""
For PM, EPA selected the 15 ~tg/m3 annual PM2, NAAQS on
the grounds that the evidence for health risk below that level
45
was too uncertain. -



~ See 62 Fed. Reg. 38883, OJA 28; id. 38688, PMJA 38.

~ For ozone, it identified a range of standards from 0.09 ppm (which
it equated to the existing 1-hour NAAQS) to 0.07 ppm. 62 Fed. Reg.
38858, OJA 3. For the annual I~M2, standards (the controlling PM?,
standard), id. 38670, PMJA 20, EPA identified a range of 12 ~ig/m' to 20
~~g/m'. 61 Fed. Reg. 65659, PMJA 140. The range proposed for the
24-hour PM2, standard was 20 ~sg/m' to 65 ~tg/m'. ld., PMJA
140. The Agency set secondary NAAQS for both ozone and PM2, at the
level of the primary NAAQS. 62 Fed. Reg. 38877, OJA 22; id, 38683,
PMJA 33.

~ 62 Fed. Reg. 38868, OJA 13; see a/so EPA Br. (D.C. Cir. 97-1441)41
(A 0.09 ppm standard "would not adequately address the uncertainties
concerning... chronic effects," while "uncertainties concerning chronic
effects were too great to warrant selection of the second- or third-highest
forms" of a 0.08 ppm standard.); hI. 42-43 (EPA is not required "to
make any specific 'findings,"' not even a finding that regulatory action is
needed to protect against a "significant risk of harm.").

See 62 Fed. Reg. 38675, PMJA 25; EPA Br. Il. Reflecting the
uncertainty and sizable impacts, the President ultimately instructed EPA to
complete a further review of the science prior to implementing these
standards. 62 Fed. Reg. 38421, PMJA 195.





18 19

What the Agency did not do was to articulate a principle
based on the statute for ~nanaging those risks-----i.e, a
principle that explains why certain risks were "suE ticiently large"
to require regulation or how much uncertainty is too much.46
The Agency did not articulate a principle that a court could
use for assessing whether the resulting standard is
reasonable.41
Subpart 2-—In its "[flinal decision on the primary
standard" for ozone, EPA explained how "the Act should be
interpreted" regarding the interplay of Subpart 2 and EPA's
ozone NAAQS revision authority. As EPA explained, "the 1-
hotir standard will remain applicable to an area until EPA
(letermines that it has attained the I-hour standard." At that
time, the 1-hour standard and Subpart 2 "will no longer apply
to that area." 62 Fed. Reg. 38873, OJA 18 (final decision);
see id. 38884-85, OJA 29-30 (response to comments).
EPA therefore concluded that it had statutory authority to
adopt a more stringent ozone NAAQS that would override
the comprehensive Subpart 2 ozone nsk management
program adopted by Congress for ozone attainment,
nonattainment, and maintenance areas. Based on that
interpretation, EPA promulgated regulatory provisions (40
C.F.R. §§ 50.9(b), 50.10) that "replacled] the existing I-hour
[standard]. . . with a new [more stringent] 8-hour [standard]."
62 Fed. Reg. 38873, 38894-95, OJA 18, 39-40.
III. THE D.C. CIRCUIT DECISIONS.

Faced with EPA's failure to articulate an intelligible
principle to guide its exercise of public health risk
management judgment, a three-judge panel of the United
States Court of Appeals for the District of Columbia Circuit
held (with Judge Tatel dissenting) that EPA's interpretation
of the Clean Air Act would render the Act's applicable
provisions an unconstitutional delegation of legislative
power. 175 F.3d 1034, Pet. App. Sa. Because the court
believed that these provisions might be subject to an
interpretation that would not violate the nondelegation
doctrine, however, the court remanded both revised NAAQS
to EPA. The court directed EPA to develop a construction
of the Act that would provide an intelligible principle for
EPA's exercise of risk management judgment.4~
In remanding the NAAQS, however, the court tied EPA's
hands in developing this "intelligible principle." The lower
court did this by reaffirming the D.C. Circuit's previous
interpretations of the Act to preclude EPA from relying on
many factors that the Agency otherwise should have
eonsI(lered to guide its risk management judgment when
promulgating NAAQS Y'
The panel also unanimously held that there was no
ambiguity that Congress intended implementation of an




See 175 F.3d 1036, Pet. App. lOa.

~' See, e.g.. 62 Fed. Reg. 38883, OJA 28; hI. 38688. PMJA 38; see a/so
[PA Hr. 28-29 (requiring consistent decisional criteria is "inconsistent
with EPA's own expert assessment of the flexibility necessary to apply
Section t09's mandate to all the pollutants for which EPA must (levelop
standards").


4R Hecause it concluded that EPA's interpretation of the Act was flawed,
the lower court left unanswered critical questions concerning EPA's
interpretation of the science. See supra note 31. Thus, it is misleading for
the American Lung Association to state that the court "did not . question
the validity of the science relied upon by EPA ALA Br.
11.

~' Those interpretations of the Act are fully briefed in Case No. 99-1426.





20 21
ozone NAAQS to proceed under Subpart 2, and agreed with
petitioners that Subpart 2 "must preclude the EPA from
requiring areas to comply either more quickly or with a more
stringent ozone NAAQS." 175 F.3d 1049, Pet. App. 40a
(emphasis added).5" The panel, however, refused to set aside
the primary and secondary 8-hour standards, 175 F.3d 1057,
Pet. App. 57a-58a, presumably restricting EPA's authority on
remand to the promulgation of revised standards that wotild
not be more stringent than the 1-hour standard.
In response to requests for rehearing and reconsideration
en bane, the full circuit court declined to hear the case. The
panel declined to modify its opinion on "nondelegation" or
on consideration of the protective effects of a criteria
pollutant. 195 F.3d 6, 10, Pet. App. 71a, 82a. After
unanimously disagreeing with EPA's contention that it lacked
jurisdiction over questions concerning the effect of Subpart 2,
the panel, in an opinion and a partial concurrence, affirmed
that the revised standard could be enforced "only in
conformity with Subpart 2." Id. 10, Pet. App. 81a.

SUMMARY OF ARGUMENT

I. This case concerns the bedrock principle that an
agency may act only within the limits of the authority
delegated to it by Congress. Unless an agency can enunciate
the limits of

~ The court also unanimously remanded the ozone standards because
EPA had failed to consider evidence that ozone in the ambient air is
protective with regard to exposure to solar ultraviolet radiation that has
been associated with skin cancer and cataracts. 175 F.3d. 105 1-53, Pet.
App. 44a-49a. Furthermore, the court vacated the Agency's new coarse
PM standards because the Agency's chosen pollutant indicator. I~M,,,
was "poorly matched to the relevant pollution agent.'~ Id. 1055, Pet. App.
S3a. Neither of these holdings, which will require further rulemaking on
remand, are before this Court.
that delegation, it is not possible for the court to evaluate the
validity of its action and it is not possible for the agency to
adopt rules that reflect "reasoned" decisionmaking.
In these rulemakings, EPA revised the ozone and PM
NAAQS that were previously found "requisite to protect the
public health" with an "adequate margin of safety." EPA
made its decision based not on findings of demonstrated
health effects, but rather based on the Administrator's
evaluation of public health risks.
In promulgating the revised NAAQS, EPA described at
length factors it used to characterize the risks at issue but was
silent on how it went about managing those risks. According
to the Administrator, her decision was "largely judgtiienlal in
nature . . . and may not be amenable to quantification in terms
of what risk is 'acceptable' or any other metric." 62 Fed. Reg.
38883, OJA 28; id. 38688, PMJA 38. Yet, it is the formulation of
this very policy judgment that Congress delegated to EPA
under § 109 of the CAA. The absence of any explanation by
EPA of the principle that guided that exercise of judgment,
based on the authority delegated to it by Congress, renders
EPA's actions unlawful.
2. EPA's argument that the courts have no jurisdiction to
review EPA's resolution of whether Subpart 2 restricts its
NAAQS revision authority is wrong. Respondents agree with
EPA that its final ozone NAAQS rules, 40 C.F.R. §§
50.9(b), 50.10, are facially inconsistent with the legislative
program for managing ozone health risks. Under the CAA's
pre-enforcement review scheme, and this Court's decision in
Harrison v. PPG Industries, Inc., 446 U.S. 578 (1980), the
court of appeals correctly reviewed the validity of these rules-
—a necessary element of which was the scope of EPA's
authority to implement a revised, and more stringent,





22 23

ozone NAAQS in light of the comprehensive Subpart 2
program for managing ozone health risks.
3. The language of the statute, the legislative history, and the
structure of the Act all make clear that Subpart 2 is Congress'
exclusive, long-term program for managing ozone health
risks. Because, as EPA concedes, EPA's more stringent revised
ozone NAAQS cannot be implemented or enforced under Subpart 2,
EPA's decision to revise the ozone NAAQS is neither
"appropriate" in accordance with §§ 108 and 109(h) nor
lawful, given the comprehensive statutory program.

ARGUMENT

I. EPA IMPROPERLY CONSTRUED THE STATUTE
TO PROVIDE NO I,FGAL STANDARD, OR
"INTELLIGIBLE PRINCIPLE," THAT WOULD
GUIDE ITS EXERCISE OF' PUBLIC hEALTH RISK
MANAGEMENT JUDGMENT.

In reviewing EPA's decisions to revise the ozone and PM NAAQS,
the D.C. Circuit invoked the so-called "weak" form of the
nondelegation doctrine. 175 F.3d 1038, Pet. App. 14a
(distinguishing the "strong" form). This is not a doctrine used
by courts to declare statutes unconstitutional.5' To the
contrary, it is a canon of statutory construction designed to
preserve the constitutionality of broad congressional delegations of
authority. See infra note 56. All this doctrine says is that the
agency must articulate, based on its authorizing legislation,
the decisional principle that Congress


" The lower court thus adhered to the principle that courts show restraint
when resolving issues implicating separation-of-powers disputes. See
Raines v. Byrd, 521 U.S. 811, 833 (1997) (Souter. I., concurring).
provided to guide the agency's exercise of rulemaking
authority.
This is not unusual. Reviewing courts must always identify
the legal standard applied by an agency in order to assess the
consistency of the agency's action with the articulated
statutory principle. See, e.g., American Lung Ass 'n v. EPA,
134 F.3d 388, 392-93 (D.C. Cir. 1998).
To be sure, there are several ways the lower court could
have reached the same result: that the Agency's refusal to
state a reason for its choice among alternative risk
management options was "arbitrary and capricious" tinder the
Administrative Procedure Act ("APA");52 that the Agency did
not adequately explain its action;53 or that EPA
misinterpreted the statute as providing no principle to guide
its exercise of public health risk management judgment.
Whichever basis for decision one chooses, the essential
principle is the same: an agency must explain what it does in
light of Congress' delegation of authority. It must explain that
for the benefit of the public, the courts that may have to
review its actions, the Congress that must exercise oversight,
and the future agency decisionmakers that must make
consistent decisions. Because EPA has not in this case offered
any intelligible principle to guide its exercise of public heath
risk management judgment, the court properly sent this case
back to EPA.




S~e Motor Vehicle Mfrs ~ss n x'. State Farm M,it. Auto. Ins. Co.,
463 U.S. 29,43(1983). CAA § 307(d)(9) provides for the same review.

See SEC x'. ('hener Corp., 332 u.S. 194, l96-97 (1947); Burlington
Truck l.ines, Inc. v. United States, 371 11.5. 156, 167-68 (1962).





24 25
A. EPA Improperly Claims Unfettered Authority
to Exercise Public Health Risk Management
Judgment.
This case involves EPA's exercise of"policy"judgment to
revise existing NAAQS to provide more "margin of safety" in
response to uncertain and overlapping estimates of health
risk. In this situation, the CAA calls for EPA to make a
decision about how to manage "public health" risk. According
to the statute, EPA is to set a standard that provides a level
of pollution "requisite" to protect the "public health" with an
"adequate margin of safety," CAA § 109,—---a standard that
must "promote" both public health and welfare and the
"productive capacity" of the country. CAA § 101(b).
In this ease, EPA merely characterized a range of
uncertain risks and selected from that range without
identifying any statutory principle that was guiding this
selection. That the lower court demanded that EPA identify
some legal standard restricting its exercise of discretion is not
unusual. Courts commonly set aside agency orders because the
agency failed to apply the correct legal standard when it
promulgated a rule or took some other action.54 Similarly,
where an agency construes a statute to provide no legal
stan~1ard at all to constrain its discretion, the courts
properly have questioned that construction under the
nondelegation doctrinci' Remanding the case for EPA to
construe the Act



For example, in Addison v. 1-lolly hilt Fruit Products, lnc., 322 U.S.
607, 618-19 (1944), Congress authorized the agency to define "area of
production" in geographic terms, leading the Court to disapprove a
regulation dependent on the number of workers involved instead.

'~ See, e.g., National Gable Television Ass 'n v. tlnitcd States,
415 U.S. 336, 342-43 (l974); International Union, flAW v. OSIIA,
938 lK2d 1310.
to provide an intelligible principle that would constrain how it
manages public health risk is in full keeping with the Court's
decisions.56 This Court always has demanded that agencies be
guided by an intelligible principle.57
EPA suggests that it has interpreted the statute to
recognize limits on its standard revision authority. According
to EPA, it considered the types of health evidence, the
severity of harm, the uncertainty of risk, and the size of the
sensitive population to define a range of risks. Considering
these factors, EI~A explains, led it to select a standard greater
than zero risk but more stringent than the existing ambient
standards. EPA Br. 31-33.




1313 (1) Cir. 1991); see also A7~TGorp. v. Iowa f/ti/s. Bd., 525
U.S.
366. 388-89, 392 (1999).
~ See Mistretta V. United States, 488 U.S .361, 374 n.7 (1989)

(nondelegation doctrine requires narrow construction of
statutes that might otherwise be unconstitutional); Industrial
Union Dep 'i, AFL-CIO '.'. American Petroleum Inst., 448 U.S. 607,
646 (1980) (plurality) (agency should be allowed to
characterize statute in a way to avoid unconstitutional
delegation); National Cable Television Ass 'n, 4t5 U.S. at 342 ("the
hurdles revealed in jA.L.A. Schechter Poultry Corp. v.
United States, 295 U.S. 495 (1935), and J. W. Hampton, Jr. & Co. v.
United States, 276 U.S. 394 (1928)1 lead us to read the
[Independent Offices Appropriation Act] narrowly to avoid
constitutional problems"); Zemel v. Rusk, 381 U.S. 1, 17-18
(1965) (construing statute so as to avoid an invalid
delegation); Kent i'. I)ulh's, 357 U.S. 116,129 (1958) (the act in
question does "not delegate to the Secretary the kind of authority
exercised"); Panama Refining Go. v R','an, 293 U.S .388 (1935).
'1 See, e.g., Loving v. United States, 517 U.S. 748, 758, 771 (1996);

Toubv t'. United States, 500 U.S. 160. 165 (1991); PEA ~'. Algonquin
SNG, Inc., 426 U.S. 548, 559-60 (1976).





26

EPA's factors, however, characterize risk but say nothing
about tnanaging it.58 And that is the problem with EPA's
rulemaking -- EPA identifies no principle to guide its exercise
of public health risk management judgment.59
Risk management judgment involves the selection and
justification of a regulatory option. No matter how
extensive the Agency's data base for risk predictions, or
how elaborate the Agency's risk characterization,
characterizing risks is not the same as explaining what risk
in the range presented by the Agency is "requisite" to
protect "public health" with an "adequate margin of
safety." EPA's failure to articulate how it managed the risk
presented by these pollutants in light of these statutory
standards and the purposes section of the Act contravenes
precisely what Congress directed EPA to do in these
rulemakings.
For ozone, for example, EPA explains that estimated
health risks and exposures decreased with more restrictive


'~ Gf Committee on the Institutional Means for Assessment of Risks to
Public Ilealth, National Research Council, Risk Assessment in the
Federal Government: Managing the Process 28-33 (1983) (identifying
the components of risk assessment).

'~ See, e.g. Industrial Union Dep 't, 448 U.S. at 645-46 (public health
regulation must be based on significant public health risks).

In attempting to articulate a more precise standard, EPA added in its
rehearing papers that its guiding principle was to set a level "necessary
for public health protection: neither more nor less stringent than
necessary, but 'requisite."' 195 F.3d 6, Pet. App. 72a (emphasis in original).
Now, [PA asserts that it need not supply a principle that establishes a
NAAQS at the "right" level. EPA Hr. 27. EPA counsels' evolving view
of what the statute requires highlights the very inadequacies that
troubled the lower court. See Burlington Truck, 371 U.S. at 168-69. In
any event, post hoc rationalizations of counsel cannot save an agency's
ii~adequate explanation of its action. 1(1
27

standards. EPA then argues that there were "important and
meaningful" differences in the character of scientific evidence
regarding risk for various standards. EPA Br. 33. But EPA's
science advisers concluded that none Qf the standards under
consideration, including the current stahdard, could be distinguished as
being significantly more protective of public health.6' Against this
background, the Administrator's assertion that public health
impacts were "important and sufficiently large to warrant a
standard set at a level of 0.08 ppm," 62 Fed. Reg. 38868,
OJA 13, simply reflects unexplained "policy" jtidgment. As
the lower court observed, this is a "self-sufficient justification
for every refusal to define limits." 175 F.3d 1037, Pet. App.
12a-13a.
Similarly, for PM, the Administrator observed that while
"inherent scientific uncertainties are too great to support
[PM25] standards based on the lowest concentrations
measured," revised standards more stringent than the existing
standards were appropriate "despite [the] well recognized
uncertainties."62 As the lower court observed, the "increasing-
uncertainty argument is helpful only if some principle reveals
how much uncertainty is too much." 1 75 E.3d 1036, Pet.
App. lOa.
Ultimately, according to the Administrator, she is
authorized by the Act to revise NAAQS based on a "policy
judgment" to provide more margin of safety, even if health
impacts "may not be amenable to quantification in terms of
what risk is 'acceptable' or any other metric." 62 Fed. Reg.
38688, PMJA 38; id. 38883, OJA 28. It is this assertion of
tinfettered authority to exercise discretion to which the lower


~' See supra p. 8.
62 62 Fed. Reg. 38675, PMJA 25; see supra pp. 10-14.





28 29
court objected. 175 F.3d 1035. Pet. App. 8a (EPA's revision
decision is "nothing more than a statement that lower
exposure levels are associated with lower risk to public
health.").
By offering as its decisional criteria factors that go only to
risk characterization, and not public heath risk
management, EPA would turn the ('lean Air Act into a
statute like the National Environmental Policy Act
("NEPA"), for which judicial review looks only at the
procedure the agency followed. Robertson v. Methow Valley
Citizens Council, 490 U.S. 332, 350 (1989) (citing Vermont
Yankee Nuclear Power C'orp. v. NRDC, 435 U.S. 519, 558
(1978)). If the Agency has followed an elaborate procedure
and identified the range of potential health risks, EPA argues,
jtidicial review should cease. There is to be, in effect, no
review of its substantive decisionmaking at all.
This argument may work for a statute that, like NEPA,
requires only "procedure" and not a "substantive"
decisionmaking result. It does not work for a statute that, like
§ 109, demands a substantive outcome: a level of air quality
"requisite to protect" the "public health" with an "adequate
margin of safety."
EPA in fact comes close to arguing its § 109
decisionmaking is a matter "committed to agency discretion
by law" and therefore unreviewable. See Citizens to
Preserve Overton Park, Inc. v, Volpe, 401 U.S. 402, 410
(1971). But that cannot be so because, as even EPA concedes,
the Clean Air Act unquestionably provides law to apply. EPA
Br. 22.
In short, the problem here is that EPA has interpreted the
statute to provide no principle to guide its exercise of risk
management judgment a problem so fundamental that, if
Congress had written the Act as interpreted by EPA, the
constitutionality of the statute wottld have been called into
question. It is for this reason that the court below invoked the
nondelegation doctrine.
Since the creation of the Interstate Commerce
Commission, this country has engaged in the process of
turning over government decisions to specialized agencies.
Concomitant with the delegation of decisionmaking authority
is a requirement that the decisionmakers remain accountable,
and that Congress remains accountable. This means that
agency decisionmakers niust explain their rationale in light of
Congress' delegation of authority.
Agencies must explain the statutory standard that guides
their exercise of rulemaking discretion and how consideration
of relevant science is applied in reference to that standard.
This explanation is important for multiple reasons implicated
by the nondelegation doctrine, as the lower court explained.
175 F.3d 1038, Pet. App. 14a. First, an explanation is
necessary so that the courts can exercise judicial review.63 There must
be ascertainable standards to which a reviewing court may
turn, for "it will not do for a court to be compelled to guess at
the theory underlying the agency's action . . .
('henerv, 332 U.S. at 196-97.
Second, an explanation is necessary so that Congress can
exercise its own oversight of the agency. For there to be informed
legislative oversight, Congress must be able to understand how
the agency has interpreted the delegation it




'~' See INS ii. Chadha, 462 11.5. 919, 953 n.16 (1983); Skinner ~ Mid-
America Pipeline Co., 490 U.S. 212. 218-19 (1989); Industrial Union
De;~ 't. 448 U.S. at 686 (Rehuquist, J., concurring); see also L.
Bressman,
Schechter Poultry at the Millennium: A Delegation Doctrine for the
Administrative State, 109 Yale I..J. 1399. 1440 (April 2000).





30 31

has been given64 Third, an explanation of the principle
underlying a decision is necessary so that agency
decisionmakers themselves can, in the future, be consistent.
State Farm, 463 U.S. at 46-49, 56-57. Fourth, the public has a
right to be told what Congress has delegated to the Executive
Branch, anti whether the Executive Branch has acted within
its congressionally delegated powers. ('linton i'. New York, 524
U.S. 417, 449-53 (1998) (Kennedy, 3, concurring).
The requirement that an agency explain the statutory
principle that guides its exercise of judgment should be
enforced all the more strictly in a case like this one, where
the decision being made is of enormous importance in terms
of its broad impacts on society. Cf Industrial Union [)ep 't,
448 U.S. at 686. As the D.C. Circuit stated in remanding a
(lifferent NAAQS, "[w]here, as here, Congress has delegated
to an administrative agency the critical task of assessing the
public health and the power to make decisions of national
import in which individuals' lives and welfare hang in the
balance, that agency has the heaviest of obligations to
explain and expose every step of its "~ As the court explained,
"[u]nless [the Administrator] describes the standard under
which she has arrive(I at this conclusion, supported by a
'[]plausible' explanation, . . . we have no basis for exercising our
responsibility to determine whether her decision is 'arbitrary
[or] capricious American Lung, 134 F.3d at 392-93
(emphasis added; citation omitted).

64 See W. Wilson, Congressional Govermuent 303 (1885), cited
in Hutchinson ~ Prasmire, 443 U.S. 111, 132 (1979); see also
Loving. 517
11.5. at 773.

~ American Lung Ass n, 134 F.3d at 392; see also FJJA i'. Brown &
Williamson Tobacco C'orp.. 120 5 Ct. 1291. I 301 (2000).
If agencies need not explain their decisions in light of the
legal standard imposed by Congress, we will be left with a
government of men, not of laws. Cf Youngstown Sheet &
Tube Co. v. Sawyer, 343 U.S. 579, 646 (1952) (Jackson, J.,
concurring). Guarding against this result are the checks
provided by the coordinate branches—especially judicial
review-—and, more fundamentally, an insistence on written
niles applied as objectively as possible—insistence, in short,
on the rule of law. See United States v. Lopez, 5 14 U.S.
549, 575-76 (1995) (Kennedy, 3., concurnng).
By contrast, the EPA's position in this case furihers the
pernicious idea that some decisions are beyond the
understanding both of the public and the courts that some
decisions, indeed the most important ones, must ultimately
turn on unquantifiable, inexplicable policy 'judgment" by the
Executive. Reliance on unexplained agency judgment leads to
rulemaking by ideology, prejudice, or messianic urge. This is
not the "rule of law."
In sum, the agency must first explain the statutory
principle it has applied based on Congress' delegation of
authority, and the courts must then say what the law is
ultimately. See Marburv v. Madison, 5 U.S. (1 Cranch) 137
(1803). That is all the D.C. Circuit has asked EPA to do in
this ease—-a most unremarkable outcome when measured
against EPA's remarkable claim of unfettered authority to
exercise public health risk management judgment.
B. EPA Is Obligated To Identify the Principle that
Guides Its Exercise of Rulemaking Authority
Even Where Congress Acts By Broad
Delegation.
In large part, the Government's argument for waving
EPA through the judicial review gate is that the courts have
affirmed the constitutionality of other, broad delegations.
EPA Br. 26-30; Mass/1"'JJ Br. 39-41. In those eases,
however,





32

parties did not seek review of whether "the will of Congress
~had] been obeyed" by the agency, see Yakus t'. United
States, 321 U.S. 414, 426 (1944), but rather whether the
statute was drafled so as to make that inquiry impossible (i.e.,
whether the statute itself created a nondelegation problem).
In those cases, the Court found an ample basis for the
agency to articulate, by resort to the statutory language,
legislative history, and other indicia of congressional intent,
defining principles for making its judgment. As a result, the
cases on which EPA relies do not stand for the proposition
that an agency may implement delegated authority without
articulating an "intelligible principle,"
For example, in Touby, the Court rejected a challenge to
Congress' delegation of power to the Attorney General to add
drugs temporarily to the schedule of controlled substances
when "necessary to avoid an imminent hazard to the public
safety." 500 U.S. at 166. As the Court found, the statute
articulated clear boundaries for the Attorney General's
discretion, id at 167, and the question whether the Attorney
General had obeyed this legislative command was not before
the Court. By contrast, the question before the cotirt of
appeals in this case was whether the delegated agency had
acted in accordance with a defined principle grounded in the
statutory language and purpose.66
That the Court has found in other cases that there were
sufficient limits on the agency's discretion to satisfy facial
challenges to the constitutionality of a statute does not
suggest that an agency need not ideiitify those limits when

See a/so Skinner, 490 13.5. 212 (challenge to the constitiiiionality
of a statute directing the Secretary of Transportation to establish user fees
to cover costs of pipeline safety program, not to consistency of the
resulting regulatory program with the statute).
33

exercising its discretion.67 If anything, the Court's careful
analysis of the congressional delegation in these cases
confirms the need for agency action to be gtiided by an
intelligible principle founded in the language and ptirposes of
the Act.~8
As the Court has observed, the touchstone of the non-
delegation doctrine remains that "private rights are protected
by access to the courts to test the application of the policy
in light of thet] legislative declaration[]." American Power
& Light, 329 U.S. at 105 (emphasis added). All the lower
court's decision says is that EPA cannot construe Congress'
broad delegation of NAAQS revision authority to authorize
unfettered risk management judgment. Rather, the Agency
must explain the statutory principle that constrains its
exercise of discretion.
C. There Is Law To Apply To Guide EPA's Exercise
of Risk Management Judgment.
Where an agency, as here, has interpreted a statute to
provide no principle to guide its exercise of discretion, the
court must look to the statute and congressional intent to
ascertain whether there is law to apply. See Marbury', 5 U.S.
(I Cranch) at 177 ("It is emphatically the province and duty
of the judicial department to say what the law is."). Thus, in
every challenge to a statute under the nondelegation
doctrine, this Court has analyzed the statute and
congressional intent to ascertain whether Congress has
identified legal standards for

See, e.g.. American Power & Light Go. 1'. SEG, 329 13.5. 90, 105
(1946); National Broadcasting (~o v. United States, 319 U.S. 190
(1943); New York Central Securities Go,~ji. v. United States, 287
13.5. 12 (1932).

See a/so FPG v. Gonway, 426 U.S. 271 (1976) (Commission must
use statutory "undue discrimination" principle when selecting a
standard from the "zone of reasonableness").





34 35

the agency to use in deriving an iiitelligible principle for its
exercise of discretion.6~
Rather than siniply remanding the case to EPA to
determine whether there is law to apply that would save the
constitutionality of the statute, therefore, this Court, in the
exercise of its Article III function, must itself resolve
whether the CAA provides guidance for the development of
an "intelligible principle." To find the law, this Court should
ask, as a first step, whether Congress has unambiguously
stated its intention. ~§'hevron U.S.A., Inc. v. NRI)C', 467
U.S.
837, 842-43 & ti.9 (1984). Congress has done so.
As explained by APC and ATA in Case No. 99-1426,
Congress intended that EPA exercise its public health risk
management judgment based on consideration of the overall
impact of its decision on society. EPA cannot merely
characterize risks to individual health that might be cattsed
by breathing a pollutant and then, without explanation,
choose a risk level that EPA declares is "sufficiently large"
to justify a revised NAAQS. See supra pp. 26-27. Instead,
EPA must explain why the regulatory option chosen satisfies
the decisional criteria in § 109, why it promotes the
statutory purposes in § 101, and why it was selected and
other options rejected. APC Br. 27-45.
Once the Court determines that there is law to apply
under a Chevron Step I analysis, thereby defining the scope
of EPA's discretion tinder § 109, EPA can then exercise its
discretion under the Act in a manner consistent with
Chevron Step 2, and in a manner that is not arbitrary and
that reflects reasoned decisionmaking. The Agency is not
required, as EPA argues, to (levelop a precise metric for the
exercise of


6Q See. e.g.. Toul,v, 500 11.5. at 166; Mistretta 488 U.S. at 374-77.
risk management judgment. See EPA Br. 26. Rather, as the
lower court observed, what is required is "reasonable
coherence" based on application of the statutory language
and purposes. 175 F.3d 1039-40, Pet. App. 17a-18a.
In this case, EPA's failure to explain itself runs afoul of
Chevron in the same way the FCC did in AT&T ('orp. There
the Court struck down the FCC's interpretation of a statute
as unreasonable because the FCC had failed to supply any
"limiting standard, rationally related to the goals of the Act."
525 U.S. at 388; see also Bressman, supra note 63, at
1434.
Here the nondelegation doctrine and Chevron converge
to a crystalline point: that the agency must explain the
"limiting standard" that guided its exercise of public health
risk management judgment. Only if this Court finds that the
normal meaning of "public health," the language of §§ 108
and 109, and the statutory purposes of the Act provide no
guidance for the Agency's exercise of public health risk
management judgment would there be a statutory
nondelegation problem --—one that could not be overcome
by the Agency by interpreting the Act under Chevron Step
2.

II. EPA'S REVISION TO THE OZONE NAAQS,
TOGETHER WITH ITS REVOCATION OF THE
EXISTING STANDARD, IS REVIEWABLE FINAL
AGENCY ACTION.

In Subpart 2 of Part D of Title I of the Act, Congress
enacted a comprehensive program for reducing ozone
following decades of unrealistic deadlines and control
measures that proved inadequate to the task. The court below
held that Subpart 2 "must preclude the EPA from requiring
areas to comply either more quickly or with a more stringent
ozone NAAQS." 175 F.3d 1049, Pet. App. 40a. As the court
observed, if EPA could adopt and implement a more





36 37

stringent ozone standard under a more expeditious schedule.
this comprehensive Subpart 2 "risk management" program
adopted by Congress "would have been stillborn had the EPA
revised the ozone NAAQS immediately after the Congress
enacted the 1990 amendments." Id. 1050. l~et. App. 42a.
Even thotigh Subpart 2 precludes EPA from requiring
areas to comply "more quickly or with a more stringent
ozone NAAQS," the court refused to set aside the standard
on this basis because, in its view, the "appropriateness"
language of§ 109(d) does not allow EPA to reject a standard
rev;sion based on "implementation" factors. Nevertheless, in
remanding the ozone NAAQS on nondelegation grounds, the
court niade clear that the ozone "standard is [unilikely to
engender costly compliance activities in light of our
determination that it can be enforced only in conformity
with Subpart 2." 195 F.3d 10, Pet. App. 81a (emphasis
added).
For the reasons discussed below, the court of appeals had
jurisdiction to resolve petitioners' challenges based on
Subpart 2. While the court properly held that Subpart 2 is
the exeltisive congressional risk management program for
a(idressing ozone health risks (and thereby restricts EPA's
authority to implement or to enforce a more stringent
ozone NAAQS), it was wrong when it held that the primary
and the identical secondary 8-hour standard cotild be adopted
and remain in effect during the remand proceeding.
A. EPA's Determination of Its Authority To Revise
the Ozone NAAQS Is Final Action.
EPA argues that the lower court's decision concerning the
interplay between Subpart 2 and the revised NAAQS was
"prematurc[]," an argument EPA first detailed in its
rehearing petition. EPA Br. 35. The cottrt rejected this
argtiment, because EPA "reached a final decision regarding
its power to
implement its revised ozone standard." 195 F.3d 9, Pet.
App. 78a.
Section 181(a) of Subpart 2 explains how Congress
intended areas to be classified as nonattainment "for ozone,
for purposes of imposing statutori ly-rnandated compliance
deadlines and attainment meastires. Section 181(b) explains
how areas designated as in attainment for ozone are to be
redesignated to nonattainment if their ozone air quality
deteriorates in the future. In these provisions, Congress
provided that all of the Act's requirements and timetables
"for ozone" are to be implemented to attain and maintain
the ozone NAAQS that existed in 1990. This is confirmed
by other Subpart 2 provisions, as (liscussed in Part Ill below.
In the rulemaking at issue here, EPA promulgated a rule
that simultaneously established a more stringent 8-hour
ozone NAAQS and made the 1-hour ozone NAAQS and
related Subpart 2 program automatically inapplicable to an
area once EPA determines that its air quality meets the I -
hour NAAQS. 40 C.F.R. §§ 50.9(b) & 50.10. Industry and
States petitioned the D.C. Circuit to review EPA's rule as
facially inconsistent with the ozone risk management plan
codified by Congress in Subpart 2—asking the court to resolve
"[w]hether EPA is authorized to substitute its policy
judgment for that of Congress by replacing the statutory
ozone reduction program designed specifically to implement
the I -hour NAAQS with a new program to implement a
different [more stringent] NAAQS."70
EPA recognizes in its brief that it would be "impossible"
to implement the more stringent 8-hour NAAQS that EPA


~ Non-State CAA Pet'rs & Intervenors' Hr. (D.C. Cir. No. 97-1441) 2. 29;
see also APC Resp. to Pet. for Cert. (99-1257) 22.





38 39

adopted in a manner that was consistent with Congress'
ozone attainment program in Subpart 2. EPA Br. 47; see
also Mass/NJ Br 47-48 (applying Subpart 2 to that standard
would be "bizarre"). Precisely for this reason, and because
EPA's 8-hour NAAQS addressed no new health effects
associated with ozone, those seeking review of EPA's revised
ozone NAAQS argued that Subpart 2 "codified" the I-hour
NAAQS and that a more stringent, revised ozone NAAQS
therefore was not "appropriate" under § 109(d). Non-State
CAA Pet'rs and Intervenors' Br. (D.C. Cir. 97-1441) 33.
By rejecting these arguments, EPA's final rule resolved the
interplay of Subpart 2 and EPA's authority to establish a
more stringent ozone NAAQS. This is a final Agency action,
and review of that action had to be sought within 60 days of
its publication in the Federal Register. CAA § 307(b)( 1);
see also harrison, 446 U.S. at 587-94.
EPA now argues that petitioners below really challenged
not a nile, but "preamble statements" that are not "final
agency action." See supra p. 18. EPA is wrong. EPA's
promulgation of its more stringent 8-hour standard
presents facial inconsistencies with the Subpart 2 risk
management program. Consequently, that action's validity
vel non can be resolved only by resolving whether Subpart 2
restricts EPA's authority to adopt and to implement a more
stringent revised ozone NAAQS. The court's review of EPA's
statements in the final rule preamble is entirely appropriate
to permit the court to understand that rule's nature,
purpose, and basis.
See, e.g., Fidel itt' Fed. Sai~ & Loan Ass 'n t'. Dc La
Cuesta, 458 U.S. 141, 158 (1982)7'



~' See also IIRI. /nc, v. EPA, 198 [3d 1224, 1244 n.13 (10th Cir.
2000)
("preamble to a regulation is evidence of an agency's contemporaneous
Moreover, the preamble statements signed by the
Administrator72 are authoritative explanations of EPA's
position on its authority to implement its more stringent 8--
hour ozone NAAQS under Subpart 1. That position, which in
any event is embodied in the rule's text, 40 C.F.R. § 50.9(b),
will "alter the legal regime" to which EPA, States, and
regulated parties are subject. See Bennett v. Spear, 520 U.S.
154, 177-78 (1997) (reviewing Fish & Wildlife Service's
Biological Opinion as final action under Endangered Species
Act). Such preamble statements are themselves reviewable,73 and
review is particularly warranted here, where § 307(b) directs
review of any final Administrator action. Harrison, 446 U.S.
at 589.
Finally, in a separate bttt related case, EPA has
acknowledged that its decision regarding the relationship
between the revised ozone NAAQS and Subpart 2 was
reviewable below as final action in the present case. In EDF
i'. hirowner, D.C. Cir. 98-1363, EPA argued the court lacked
subject matter jurisdiction in that case to hear EDF's challenge
to EPA's determination that the 1-hour NAAQS and Subpart 2 were
inapplicable in specific areas that had met the I-hour NAAQS. EPA
Br. (D.C. Cir. 98-1363) 27-28, App. 22a-23a. According to EPA,
"[o]ther participants in the [ozone] NAAQS rulemaking
understood the implications of


understanding of its proposed rules") (quoting Wyoming
Outdoor Gouncil ~', United States Forest Sees'., 165 F.3d 43, 53
(D.C. Cir. 1999)).
72 See supra p. 18; see also 62 Fed. Reg. 38424, PMJA 198
(memorandum from President ('linton).

~ Indeed, EPA recently argued to the D.C. Circuit that a
preamble statement itself may be reviewable action. See Barrick
Goldstrike Mines. Inc. v Browner, 215 [3d 45, 48 (D.C. Cir.
2000).





40 41

EPA's interpretation and challenged aspects of it in the
pending ATA litigation"—-the ease before this Court. Id. 29,
App. 23a.
In sum, EPA's promulgation of a new standard to replace
the I-hour standard and the statutory Subpart 2 ozone
attainment program was final agency action that was
reviewable under § 307(b) of the Clean Air Act.
B. EPA's Decision To Replace Subpart 2 Is
Ripe.
As discussed above, whether the Act precludes EPA from
replacing the I-hour ozone NAAQS with a new, more
stringent NAAQS that cannot be implemented under Subpart
2 is a pure question of law that requires no further factual
development. See also 195 F.3d 8-9; Pet. App. 77a-79a.
As this Court has recognized, federal courts "have no
more right to decline the exercise of jurisdiction which is
given, than to usurp that which is not given."74 In § 307(b)
of the Act, Congress authorized courts of appeals to review
any final EPA action tinder the Act. CAA § 307(b);
harrison, 446 U.S. at 589. The sweeping nature of Congress'
directive that judicial review of "any" final CAA actions
occur immediately is clear on the statute's face, hi. at 588,
and the legislative history confirms Congress' purpose. Id. at
589-
90. Quick resolution of the validity of EPA actions is
crucial, inter alia. to maintain "the integrity of the time
seqttences provided through the Act." See S. Rep. No. 91-
1196, at 41 (1970), reprinted in I Sen. Comm. on Pub.


('ohen.s i'. t'irginia, 19 11.5. (6 Wheat.) 264. 404 (1821);
see also Harrison, 446 11.5. at 593. There is no
constitutional barrier to giving effect to Congress'
judicial review directive in § 307(b). Because the petitions
for review raised a purely legal isstie, i.e., whether Subpart 2
provides EPA's sole authority to enforce ozone NAAQS, the
court was
fully able to review that issue.
Works, A Legislative history of the Clean Air Amend,nents of
1970, at 441 (Comm. Print 1974).
As a result, the justiciability concerns underlying Abbott
Labs v. Gardner, 387 U.S. 136 (1967), are absent here.
That is, Abbott Labs' two-pronged ripeness test embodies
the prudential doctrine that "courts, through avoidance of
premature adjudication, [should refrain I from entangling
themselves in abstract disagreements over administrative
policies, and also [is intended] to protect the agencies from
judicial interference until an administrative decision has been
formalized and its effects felt in a concrete way Id. at
148. As seen above, however, Congress in the CAA
specifically instructed courts to review final actions "pre-
enforcement" in order to ensure early resolution of
challenges to EPA's execution of the CAA. See Ohio
Forestry Ass 'n i'.
Sierra Club, 523 U.S. 726, 737 (1998) (action was "unlike
agency rules that Congress has specifically instructed the
courts to review 'pre-enforcement"') (citing harrison, 446
U.S. at 592-93; CAA § 307(b)).'5
Because Congress directed that all final EPA actions
under the CAA be subject to immediate review, and because
the issue presented requires no further development, the
lower court did not err in reviewing the action here.76

~ For the same reason, EPA's reliance on Lujan v. National
Wildl~fe Fed n, see EPA Br. 36, is misplaced. See 497 U.S. 871,
891 (1990) (noting that challenges may be brought under certain
"statutes [that]
permit . . - judicial review, directly, even before the concrete effects
normal4' required for APA review are felt") (emphasis added).

~ Even if the Court deems the issue presented for review to the lo~ver
court subject to Abbott Labs, this Court should find the issue ripe. As
explained above, the question of FPA's legal authority under
Subparts t and 2 is "purely legal," and hardship from delayed
review would ensue from the disruption to State and
industry planning and control efforts.





42 43

III. SUBPART 2 RESTRICTS EPA'S AUTHORITY TO
REVISE THE OZONE NAAQS.

EPA claims "[tihe only issue involving 'implementation'
before the court of appeals as whether the participants
were correct that the Section I 81(a) scheme precluded EPA
from promulgating the revised standard." EPA Br. 357
Addressing this isstie, however, requires an understanding of
Subpart 2 and how it restricts EPA's authority with respect
to a more stringent revised NAAQS for ozone. The facial
incompatibility between Subpart 2 and EPA's establishment
of the tnore stringent 8-hour ozone NAAQS shows that
EPA lacked authority to implement or enforce a more
stringent NAAQS, and indeed lacked authority to replace
the I-hour ozone NAAQS as the template for Congress'
detailed statutory "risk management" program.
A. Subpart 2's Plain Language Precludes EPA
From Replacing the Existing Ozone NAAQS.
Section 107(d) contains the requirements for designations
and redesignations of areas as attainment, nonattainment, or
unclassifiable for any criteria pollutant. Section 107(d)(4)
requires States and EPA to designate areas for ozone within
240 days after enactment of the 1990 CAA Amendments.
Under § 107(d)(3), areas may later be "redesignated." And



See State Resp. Br. (99-1257) § Ill.B.3. Moreover, in fashioning a
remedy, 195 [3d lO, Pet. App. 81a-82a, it was appropriate for the court to
review EPA's implementation authority under Subpart 2. See Weinberger
v. Romero-Barcelo, 456 U.S. 305, 311-12 (1982).

" This was not the only implementation issue raised by Industry
petitioners, as intervenors supporting EPA below recogni-,e. See Mass/NJ
Pet, for Cert. (99-1263) 14. 22.
§ 107(d)(l) addresses area designations under a new or
revised NAAQS.
Subpart 2 requires that "[elach area designated
nonattainment for ozone pursuant to section 107(d) of
this Act"—not any specific paragraph of § 1 07(d), but any
part of § 107(d)—be classified "by operation of law" under
Subpart 2 and then regulated pursuant to Subpart 2's
timetables and control measures. CAA § 181(a)(l)
(emphasis added). Congress also directed in § 181 that
"[a/ny area that is designated attainment or unclassifiable for
ozone under section 107(d)(4) of this Act, and that is
subsequently redesignated to nonattainment for ozone
under section I 07(d)(3) of this Act, shall, at the time of the
redesignation, be classified by operation of law in accordance
with table I under subsection (a) of Section 181." CAA §
181(b)(l) (emphasis added).
Thus, Subpart 2 by its plain terms governs management
of ozone indefinitely, until Congress changes the statutory
scheme. The Subpart 2 deadlines have not all run; indeed, as
the second sentence of § 181(b)(l) makes clear, they will
be reset and run anew any time an area initially designated
under § 107(d)(4) becomes nonattainment "for ozone."
Moreover, as the lower court recognized, Congress
provided in § 172(a)(l)(C) that EPA's generic authority
under Subpart 1 to classify areas for purposes of applying
an attainment date "shall not apply with respect to
nonattainment areas for which classifications [and
attainment dates] are specifically provided under other
provisions of [Part D]." 175 F.3d 1048, Pet App. 37a. Likewise,
Congress provided in § 172(a)(2)(D) that Subpart l's
attainment dates "shall not apply with respect to
nonattainment areas for which attainment dates are
specifically provided under other





44
provisions of (Part DJ." As noted above, Subpart 2
specifically provides classificatioiis and attainment dates for
"[e]ach area designated nonattainment for ozone pursuant to
section 1 07(d)" (emphasis added).
Contrary to claims by Massachusetts, New Jersey and
ALA, therefore. Congress made clear in § I 72(a) that
EPA's Subpart I authority to classify and to regulate
nonattainnient areas is expressly limited, because Congress
has "specifically provided" a scheme for classification and
attainment deadlines tinder Subpart 2. EPA argues, however,
that because Subpart 2 addresses the I-hour ozone NAAQS,
Subpart 2 does not "specifically provide[]" an alternative to
Subpart I for an ozone NAAQS designed to replace the 1-
hour ozone NAAQS. Id. This argument is entirely circular.
As the lower court found, EPA's position ignores the
plain language of § 181(a), which makes Subpart 2 broadly
applicable to "[ejach area designated nonattainment for
ozone pursuant to section 107(d)" (emphasis added). EPA's
argument also ignores § 181(b), which makes Stibpart 2
applicable to am' area that is "subsequently redesignated to
nonattainmentfor ozone" (emphasis added). The lower court
correctly found under "Step I" of Chevron that the statute
on its face disposes of EPA's arguments by establishing a
comprehensive and long range risk management program for
ozone. 175 F.3d 1048, Pet. App. 38a-39a.
EPA nevertheless argues that the court of appeals erred
by not interpreting the plain language of CAA § 18 1(a)
(which refers to "[ejach area designated nonattainment for
ozone pursuant to section 107(d)") to refer only to those
areas designated under § I 07(d)(4). The court below found,
however, that "Congress intentionally referred to § 1 07(d)
as a whole," 175 F.3d 1049, Pet. App. 39a, making Subpart
2 applicable to all areas that are "designated nonattainment
for
45

ozone pursuant to section 107(d)." CAA § 181(a). As the
court concluded, "the reference to § 107(d) in § 181(a)(l)
appears to have been purposeful and not the drafting error
EPA's interpretation implies." 175 F3d 1048, Pet. App. 39a.
The legislative history confirms that Congress rejected a
limited scope for the Subpart 2 risk management scheme.
The Senate's version of Subpart 2 classified only initial
designations.78 Moreover, this Senate Bill did not require
using "design values" based on the I-hour NAAQS, as did § 181(a)
as enacted. but tied classification to the degree the area was
in nonattainment with the ozone NAAQS. hI.
Similarly, the Bill referred to the house Energy an(l
Commerce Committee would have made the Subpart 2
scheme applicable only to designations under § 107(d)(4)'s
predecessor.79 Subsequently, that Committee replaced that
specific reference to § 107(d)(4) with the general reference
to all nonattainment designations "for ozone pursuant to
section 107(d)."80 The Conference Committee then reported
the text of the revised House Bill in lieu of the Senate's,8' and
the conferees' version was enacted. This change in legislative
langtiage that reflects a congressional intent to adopt a
comprehensive and exclusive risk management program for
ozone must be given effect. Cf Russello v. United States,
464 U.S. 16, 23-34 (1983).

See 5. 1630, 101st Cong., §§ 101, 107, reprinted in 3 /990 Legis.
Hist., supra note 3, at 4t24-25, 4195.

~ See HR. 3030, 101st Cong., §§ 101(a), 103, reprinted in 2 1990
Legis.
lust., supra note 3, at 3748-49, 379S~96.
8~) HR. Rep. No. 101-490, pt. 1, at 3-6, 17, reprinted in 2 1990 Legis.

Hia., supra note 3, at 3027-30, 3041.

8' See HR. Rep. No. 101-952, at 27-28, reprinted in 11990 Legis.
lust.,

supra note 3, at 1477-78.





46 47

In a final effort to find sonic supportive language in the
statute, EPA notes § 181(a)'s subheading: "Classification
and attainment dates for 1989 nonattainment areas." But
"[t]he title of a statute. . . cannot limit the plain meaning of
the text. For interpretative purposes, [statutory headings
are] of use only when [they] shed light on some ambiguous
word or phrase." See Pennsi'lvania Dep 't of Corrections i'.
Yes key, 524 U.S. 206, 212 (1998) (emphasis added). In any
event, this subheading does not contradict § 181(a)'s plain
meaning, EPA Br. 47~ it reflects Congress' intent that it is
the existing I-hour ozone NAAQS that EPA is supposed to
administer, not a revised, more stringent
one "for ozone." Cf § 18 1(b).
Furthermore, contrary to Massachusetts and New .Jersey's
suggestion, Subpart 2's plain language does not make
superfluous Congress' grant to EPA of authority to review
antI revise the NAAQS and to designate an(1 to classify
nonattainment areas under Subpart I. Mass/NJ Br. 47. EPA's
review of the ozone NAAQS, for example, would inform
Congress of the adequacy of the statutory ozone program as
"appropriate." Moreover, even tinder the court of appeals'
decision, § 109(d) and Subpart I still apply to other criteria
pollutants for which Congress has not provided a
comprehensive risk management program based on a specific
NAAQS. For example, in Subpart 4 of Part D, Congress
enacted an exclusive risk management program for the
attainment of PM,0, CAA §§ l88~l90,82 but no such
program for PM, ~. Likewise in Subpart 5, Congress provided
no program comparable to Subpart 2 for any of three other
criteria pollutants: sulfur oxides, nitrogen dioxide, and lead.
See CAA § 191. Thus, Stibpart I applies to a revised


'~ See (1150 (7AA §§ 186-187 (establishing carbon monoxide program).
NAAQS for these criteria polltitants, and to NAAQS for any new
criteria pollutants EPA may list. By contrast, allowing EPA
to replace the ozone NAAQS makes Stibpart 2 superfluous.
As a result, this interpretation must be rejected.
See Mackey v. Lan ier Collection Agency & Serv., hnc., 486
U.S. 825, 837 & n.1 1(1988).
B. Subpart 2's History and Structure Confirm It Is
the Exclusive Plan for Managing Ozone.
EPA's revision of the ozone NAAQS also ignores
Congress' description of Subpart 2 as the comprehensive risk
management program for ozone. As the House noted when it
modified its version of Subpart 2 to cover all ozone
designations, "[i]n 1977. Congress tried to waive [sic] a
'magic wand' and command that all [ozone] nonattainment
areas will meet the applicable [NAAQS]... by... December 3
1, 1987 . . . [That] date [has] come and gone and it is clear that
. . . we had no 'magic' solutions. "~ As a result, Congress enacted
Subpart 2 to "address the failure of our nonattainment areas
to achieve ambient air quality deadlines in existing law . . , . We
have not [in Sttbpart 2], however, simply continued to tell
the states to do a [Subpart I] plan to clean their air. That did
not work."84
Congress, in 1990, thus concluded that legislating how to
attain the ozone standard was as important, from a public



'~ 11 R. Rep. No. 101-490, pt. 1, at 146-47, reprinted in 2 1990 Legis.
h-list., supra note 3, at 3170-71, OJA 3557-58.

'~ 136 Cong. Rec. H12867 (daily ed. Oct. 26. 1990) (Rep. Fields), reprinted
in 1 1990 Legis. Hist,supra note 3, at 1236, OJA 3543; see also 136
Cong. Rec. 132, reprinted in 4 /990 Legis. Hist., supra note 3, at
4837 (Sen. Chafee).





48 49

health standpoint, as setting the standard itselfi5 According
to the 1-lotise Committee, a long-temi strategy that
mandated control measures and sanctions for failure to
achieve required ozone reductions was necessary.
This is precisely what Subpart 2 accomplishes. Subpart 2,
uniquely, reflects Congress' response to risk management,
not by imposing deadlines and general requirements that
must be developed by states and then seeing these deadlines
and general requirements fail to achieve the desired ozone
reductions, but by adopting a comprehensive risk
management program that Congress concluded embodies
sound public health policy with respect to reducing ambient
ozone concentrations.
Subpart 2 provides a detailed timetable for attaining the
ozone NAAQS, both in areas currently in nonattainment and
areas becoming nonattainment in the future. CAA § 1 81(a),
(b).'~6 It provides a manner for reducing ozone levels
depending on the severity of the pollution. See, e.g., §
182(a)-(e). It provides a legislative check on EPA's use of a
methodology for determining ozone air quality. § l83(g). It provides
interstate ozone pollution requirements. § 1 84; see also supra
pp. 4-5.



~ See HR. Rep. No. 101-490, pt. 1, at 145-49, reprinted in 2 1990
Legis.
list., supra note 3, at 3 169-73 (discussing the failure to attain
reductions of ozone under Subpart I), OJA 3556-60.

~" Although ALA points to EPA's treatment of some nonattainment
areas as "submarginal," ALA Br. 39-40, as evidence that Subpart 2 does
not apply comprehensively to all nonattainment areas, EPA has
indicated that submarginal areas are "subject to the time schedule of
subpart 2" if their air quality calls for reclassification under fable 1.
57 Fed. Reg. 13525. Thus, Subpart 2 is a comprehensive response to
the ozone nonattainment problem.
The only reasonable interpretation of this comprehensive
and long term risk management program is that Congress
meant for Subpart 2 to be the exclusive federal statutory
program for lowering ambient ozone levels. EPA's
establishment of its 8-hour ozone NAAQS renders irrelevant
this carefully crafted legislation. Given Congress' detailed
legislation, it is not plausible to conclude EPA retained
authority to adopt a NAAQS inconsistent with this program.
Cf Brown & Williamson, 120 S.Ct. at 1301 (legislation
regulating sale of tobacco confirmed Congress' intent to
restrict FDA authority to regulate tobacco as "drug").
C. Subpart 2 Renders the Revised Ozone NAAQS
Unlawful.
Section 109(d) authorizes EPA to revise a NAAQS only
as "appropriate" in accordance with CAA §§ 108 and
109(b). As discussed above, the court of appeals was correct
that a revised, more stringent NAAQS could not be
implemented or enforced except in conformity with Subpart
2. But if a more stringent revised NAAQS cannot be
enforced except in conformity with Subpart 2, and as EPA
explains, only the 1-hour NAAQS can be implemented and
enforced under Subpart 2, it is not "appropriate" to revise
that NAAQS under
§ 109(d) to establish a more stringent NAAQS for ozone.
Because Subpart 2 is Congress' comprehensive and long term
program for managing ozone, and because this program
applies to "ozone nonattainment areas" generally,57 this




~ Section 18 1(a) addresses "primary standard~sj" only in
specifying outer dates for attainment of the i-hour NAAQS.
Subpart 2 otherwise simply addresses "area~s] designated
nonattainment for ozone."





50
conclusion applies with equal force to primary and
secondary ozone NAAQSi~
This Court therefore should affirm the lower court's
holding that Subpart 2 restricts EPA's attthority to enforce
a more stringent ozone NAAQS, should reject that court's
holding that EPA may promulgate a standard that is
contrary to § 109(d) and Subpart 2, and should vacate the
revised ozone NAAQS as inconsistent with the
congressional program for achieving ozone reductions.

CONCLUSION

For these reasons, the Court should order vacatur of the
revise(l NAAQS for ozone and PM, ~.
Respectfully submitted,
DAVID E. MENOTTI
WILLIAM F. PEDERSEN

JEFFREY A. KNIGHT

SHAWPI~ITMAN

2300 N Street, NW.
Washington, D.C. 20037
(202) 663-8675

Gounsel for American Forest & Paper Association, American
hi-ott & Steel Institute, and Alliance of Automobile
Afanufacturers
HENRY V. NICKEL
F. WILLIAM BROWNELL (Coiinsel of Record)
JAMES N. CHRISTMAN
LUCINDA M. LANOWORTHY
IItNToN & WILlIAMS
1900 K Street, N.W.
Washington, D.C. 20006
(202) 955-1500
Gounselfr,'r Appalachian Power Go., et al., Atnerican Thiblic
Power Association, and National Association of h-home
Ruilders
G. WILLIAM FRICK
M. ELIZABETH Cox
AMERICAN PETROLEtJM INSTITUTE

1220 L Street, NW.
Washington, D.C. 20005
(202) 682-8250
Counsel for American Petroleutn Institute

MAURICE H. MCBRIDE NATIONAL PETROCHEMICAL &
REFINERS ASSOCIATION
1899 L Street, N.W.
Washington, D.C. 20036
(202) 457-0480
('ounsel for National Petrochemical & Refiners Association

NEWMAN R. PORTER
l...EwIs AND ROCA
40 N. Central Avenue
Phoenix, AZ 85004
(602) 262-5786
Counsel for Nevada Mining
Association, Newmont Gold
Company. and Meridian
Gold Gotnpany
DAVID F. ZOLL
ALEXANDRA DAPOLITO DUNN
AMERiCAN CHEMISTRY COUNCIL
1300 Wilson Boulevard
Arlington, VA 22209
(703) 741-5165
Gounsel for A inerican Chemistry Council

JULIE BECKER

ALLIANCE OF AU'loMoRlt.E MANUFACTURERS
1401 H STREET, NW.

Suite 900
Washington, D.C. 20005
(202) 326 5500
Counsel for Alliance of Automobile Manufacturers

HAROLD P. QUINN, JR. NATtONAL MINING
ASSOCIATION
1130 17th Street, N.W.
Washington, D.C. 20036
(202) 463-2652
Counsel for National Mining Association




In any event, the court of appeals was correct to remand the secondary NAAQS (be to the extent EPA relied on the primary NAAQS in
promulgating it. 175 [3d 1040; Pet. App. l8a.


KURTE. BLASE

O'CONNOR & 1-IANNAN
Suite 500
1666 K Street, N.W.
Washington, D.C. 20006-
2803
(202) 887-1400
Gounselfor Kennecott
holdings ('orporation,
Kennecott Energy and
Goal Gompanv, Ken necott
Services Company, and
National Stone Association


RUSSELL S. FRYE

COLLIER, ShANNON, RILI. &
SCOTT, PLLC
3050 K Street, NW.
Suite 400
Washington, D.C. 20007
(202) 342-8878
and
RICHARD WASSERSTROM
AMERICAN FOREST & PAPER
ASSOCIATION, INC.

Ill 119th Street, NW.
8"' Floor
Washington, D.C. 20036
(202) 463-2582
MARCELLE SHOOP
Associate General Counsel
KFNNFCOTF UTAH COPPER
CORPORATION
8315 West 3595 South
P0. Box 6001
Magna, Utah 84044-6001
(801) 252-3000
Counsel for Ken necott
Holdings Corporation,
Kennecott Energy and
Coal Company, and
Kennecott Services Co.

TIMOTHY L. HARK ER
TIlE IJARKER LAW FIRM
9500 Accord Drive
Potomac, MD 20854
(301) 983-0964
and
THOMAS J. GRAVES
NATIONAL PAINT AND
COATINGS ASSOCIATIoN,
INC.
1500 Rhode Island Ave.,
N.W.
Washington, D.C. 20005
(202) 462-6272
Counsel for National Paint
afl(l Coatings Association
GRANT CRANDA1~L
General Counsel
UNITED MINE WORKERS OI~
AMERICA, AFL-CIO
8315 Lee Highway
Fairfax, VA 22031
(703) 208-7200
and
EUGENE M. TRISKO
P.O. Box 596
Berkeley Springs, WV 25411
(304) 258-1977
Gounselfor United Mine
Workers ofAmerica, AFL-
('I()

DUANE J. DESIDERIO
NATIONAL ASSOCIATION OF
HOME BUILDERS
1201 15th Street, N.W.
Washington, D.C. 20005
(202) 861-2146
Counsel for National
Association of Home
Builders
DAVIOM. FLANNERY
JACKSON & KElLY
P.O. Box 553
1600 Laidley Tower
Charleston, WV 25322
(304) 340-1017
Counsel for Midwest Ozone
Group, and West Virginia
Chamber of Co,nmerce

PETER S. GLASER

SHOOK, HARDY & BACON

600 14"' Street, NW.
Suite 800
Washington, D.C. 20005
(202) 639-5627
Counsel for Western Fuels
Association, Inc.

DAVID M. FRIEDI.AND
BEVERIDGE & DIAMOND
1350 I Street, NW.
Suite 700
Washington, D.C. 20005
(202) 789-6000
Gounsel for Phoenix
Cement Co.
September 9, 2000


Counsel for American Forest
& Paper Association, hne.


APPENDICES
A. 40 C.F.R. § 50.9 National I-hour primary
and secondary ambient air quality standards for
ozone (excerpt) I a
13. 5. 1630, 101st Cong., 2d Sess., § 107 (1990)
(Additional Requirements for Ozone
Nonattainment Areas) (excerpt) 2a
C. ll.R. 3030, lOlstCong.,2dSess., § 103 (1990)
(Additional Provisions for Ozone
Nonattainment Areas) (excerpt) Sa
I). H.R. Rep. No. 101-952, 101st Cong., 2d Sess.,
(1990) (Additional Provisions for Ozone
Nonattainment Areas) (excerpt) 12a

F. l3rief of Respondent United States
Environmental Protection Agency, Environmental
Defense Fund v. Browner (L).C. Cir. No.
98-1363) (excerpt) 19a
F. Appalachian Power Co., et al., Petition
for D.C. Circuit Review of EPA Ozone
NAAQS Rulemaking 25a


Ia

APPENDIX A

40 C.F.R. § 50.9 National I-hour primary and secondary ambient air quality standards for ozone (Excerpt)
* * *




(b) The I-hour standards set forth in this section will no longer apply to an area once [PA determines that the area has air quality meeting the I-hour
standard. Area designations are codified 40 CFR part 81.



Estrenie ozone noltattairlment
area
5
y
e
a
r
s
10
y
e
a
r
s
15
y
e
a
r
s
20
y
e
a
r
s

3a
2a
APPENDIX B
percentage by
which the
national
primary
ambient air
quality
standard for
ozone is
exceeded in
any area —


S.1630, 101st Cong., 2d Sess., § 107 (1990) (Additional
Requirements for Ozone Nonattainment Areas)
(excerpt)

ADDITIONAL REQUIREMENTS FOR OZONE
NONATTAINMENT AREAS

Sec. 107. Part D of the Clean Air Act is amended by
adding the following new subpart at the end thereof:

~SUBPART 2—ADDITIONAL PROVISIONS REGARDING
OZONE NONATTAINMENT AREAS
"Cl ASSIFIC ATIONS OF OZONE NONATTAINMENT
AREAS

"SEC. 181. (a) CLASSIFICATION BY OPERATION OF
LAW.—--Each area designated nonattainment for ozone
under section 107(0(3) is hereby classified by operation of
law in one of the following categories based upon the
percentage by which such standard is exceeded:
"(1) the most recent monitoring data available as
determined by the Administrator shall be used; and

"(2) the interpretation methodology issued by the
Administrator most recently before the date of
enactment of this subpart for determining attainment
of the standard shall be applicable (including the
design value, reference methods, and guidelines for
interpretation of ozone air quality standards).

Not later than thirty days after the enactment of this
subpart, the Administrator shall publish a notice of the
percentages by which the national primary ambient air
quality standard for ozone was exceeded in each area referred
to in subsection (a).

"(c) DEADLINES FOR ATTAINMENT—The
following deadlines apply to the ozone nonattainment areas
classified in accordance with subsection (a):




Area classification

Moderate ozone flonattainment
area.
Amount by which standard
exceeded Not greater than 20
per centum
"Area classification
Applicable attainment due
(in years after enactment of
the
Clean Air Act Amendments of
1989)


Serious ozone nonattainment
area -
More than 20 per centum hut
less
than 50 per centum
Severe ozone nonattainment
area
Equal to or greater than 50 per
Moderate Area
Serious Area
Severe Area
Extreme Area


eenti,m but not more than 120 per centuto

More than 120 per ceritum



"(b) DATA AND METhODS FOR CLASSIFICATION
.4or purposes of determining the


"(d) REFERENCES TO TERMS--Any reference in
this subpart to a 'moderate area', a 'serious area' a ~severe
area', or an 'extreme area' shall be considered a reference to a
moderate ozone nonattainment area, a sertous ozone
nonattainnieiit area, a severe ozone nonattainment area, or
an





4a

extreme ozone nonattainmerit area as classified under this
section.

"(e) Any area that is not designated nonattainment for
ozone under section 107 as of the date of enactment of this
section, and that is subsequently redesignated to
nonattainment for ozone under section 107, shall, at the time
of the redesignation, be classified by operation of law in
accordance with the table under subsection (a). Upon its
classification, the area shall be subject to the same
requirements under section 110, subpart 1 of this part, and
this subpart that would have applied had the area been so
classified as of the time of the classification under subsection
(a), except that any absolute, fixed date applicable in
connection with any such requirement is extended by
operation of law by a period equal to the length of time
between the date of enactment of this section and the date
the area is classified.
Sa

APPENDIX C

HR. 3030, 101st Cong., 2d Sess., § 103 (1990)
(Additional
Provisions for Ozone Nonattainment Areas)
(excerpt)

SEC. 103. ADDITIONAL PROVISIONS FOR OZONE
NONATTAINMENT AREAS.

Part D of title I is amended by adding the following new
subpart at the end thereof:

"Subpart 2 —Additional Provisions for Ozone
Nonattainment Areas
"Sec.
"Sec.
"Sec.
"Sec.
"Sec.
* * *
181.
182.
183.
184.
185.
"Sec. 1 85A.

"Sec. 185B.
Classifications and attainment dates.
Plan submissions and requirements.
Federal ozone measures.
Control of interstate ozone air pollution.
Enforcement for Severe and Extreme ozone
nonattainment areas for failure to attain.
Transitional areas.
NO~ and VOC study.



"SEC. 181. CLASSIFICATIONS AND ATTAINMENT I)ATES.

"(a) CLASSIFICATION AND ATTAINMENT DATES FOR 1989
NONATTAINMENT AREAS.—(l) Each area designated nonattainment
for ozone pursuant to section 107(d) shall be classified at the time of such
designation, under table 1, by operation of law, as a Marginal Area, a
Moderate Area, a Serious Area, a Severe Area, or an Extreme Area based
on the design value for the area. The design value shall be calculated
according to the interpretation


7a
6a
methodology issued by the Administrator most recently
before the date of the enactment of the Clean air Act
Amendments of 1990. For each area classified under this
subsection, the primary standard attainment date for ozone
shall be as expeditiously as practicable but not later than the
date provided in table I.

TARIF I
Primary standard
attainment
Area class Design value* date*
Marginal - 0.121 up to 0 138 3 icars afler
enactment
Moderate 0 138 up to 0160 - 6 years after
enactment
Serious 0 160 up to 0 180 9 years atter
enactment
Severe 0 ISO up to 0.280 IS years after
enactment
F-stren,e 0.280 and above 20 years after
enactment


1he design value s measured in parts per million tppnt)

~lhe primary stanslard attainment date is measured from the date of the enactment of
the (lean Air Amendments of 1990.



"(2) Notwithstanding table 1, in the case of a severe
area with a 1988 ozone design value between 0.190 and 0.280
ppm, the attainment date shall be 17 years (in lieu of 15
years)
after the date of the enactment of the Clean Air Amendments
of 1990.

"(3) At the time of publication of the notice under
section 1 07(d)(4) (relating to area designations) for each
ozone nonattainment area, the Administrator shall publish a
notice announcing the classification of such ozone
nonattainment area. The provisions of section 1 72(a)( 1
)(B) (relating to lack of notice and comment and judicial
review) shall apply to such classification.
"(4) If an area classified under paragraph (I) (Table 1)
would have been classified in another category if the design
value in the area were 5 percent greater or 5 percent less than
the level on which such classification was based, the
Administrator may, in the Administrator's discretion, within
90 days after the initial classification, by the procedure
required under paragraph (3), adjust the classification to place
the area in such other category. In making such adjustment,
the Administrator may consider the number of exceedances of
the national primary ambient air quality standard for ozone in
the area, the level of pollution transport between the area and
other affected areas, including both intrastate and interstate
transport, and the mix of sources and air pollutants in the
area.

"(5) Upon application by any State, the
Administrator may extend for 1 additional
year (hereinafter referred to as the 'Extension
Year') the date specified in Table I of
subsection (a) if— "(A) the State has complied
with all
requirements and commitments pertaining to the area
in the applicable implementation plan, and

"(B) no more than 1 exceedance of the
national ambient air quality standard level for ozone
has occurred in the area in the year preceding the
Extension Year.

No more than 2 one-year extensions may be issued under this
paragraph for a single nonattainment area.
"(b) NEW
RECI ASSIFICATIONS.-
DESIGNATIONS
AND





8a
"(1) NEW DESIGNATIONS TO
NONATTAINM[:NTAnY area that is designated attainment
or unclassifiable for ozone under section 107(d)(4), and that
is subsequently redesignated to nonattainment for ozone
under section 107(d)(3), shall, at the time of the redesignation,
be classified by operation of law in accordance with fable I
under subsectioli (a). Upon its classification, the area shall be
subject to the same requirements under section 110, subpart I
of this part, and this subpart that would have applied had the
area been so classified at the time of the notice under
subsection (a)(3), except that any absolute, fixed date
applicable in connection with any such requirement is
extended by operation of law by a period equal to the length
of time between the date of the enactment of the Clean Air
Act Amendments of 1990 and the date the area is classified
under this paragraph.

"(2) RECLASSIFICATION UPON FAILURE TO
ATTAIN.aA) Within 6 months following the applicable
attainment date (including any extension thereof) for an
ozone nonattainment area, the Administrator shall
determine, based on the area's design value (as of the
attainment date), whether the area attained the standard by
that date. Except for any Severe or Extreme area, any area
that the Administrator finds has not attained the standard by
that date shall be reclassified by operation of law in
accordance with Table I of subsection (a) to the higher of--—
the area, or
(i) the next higher classification for
(ii) the classification applicable to the
area's design value as determined at the time of the notice
required under subparagraph (13).
No area shall be reclassified as Extreme under clause (ii).

(B) The Administrator shall publish a
notice in the Federal Register, no later than 6 months
following the attainment date, identifying each area that the
Administrator has determined under subparagraph (A)
as having failed to attain and identifying the
reclassification, if any, described under subparagraph
(A).

"(3) VOLUNTARY RECLASSIFICATION.—fhe
Administrator shall grant the request of any State to
reclassify a nonattaininent area in that State in accordance
with Table I of subsection (a) to a higher classification. The
Administrator shall publish a notice in the Federal Register of
any such request and of action by the Administrator granting
the request.

(4) FAILURE OF SEVERE AREAS TO ATTAIN
STANDARD. (A) If any Severe Area fails to achieve the
national primary ambient air quality standard for ozone by
the applicable attainment date (including any extension
thereof), the fee provisions under section 185 shall apply within
the area, the percent reduction requirements of section I
82(c)(2)(B) and (C) relating to reasonable further progress
demonstration and NO~ cotitrol) shall continue to apply to
the area, and the State shall demonstrate that such percent
reduction has been achieved in each 3-year interval after such
failure until the standard is attained. Any failure to make such
a demonstration shall be subject to the sanctions provided
tinder this part.

(B) In addition to the requirements of
subparagraph (A), if the ozone design value for a





1 la
I Oa
Severe Area referred to in subparagraph (A) is above
0.140 ppm for the year of the applicable attainment
date, or if the area has failed to achieve its most
recent milestone under section 182(g), the new source
review requirements applicable under this subpart in
Extreme Areas shall apply in the area and the term
'major source' and 'major stationary source' shall have
the same meaning as in Extreme Areas.
"(2) Any reference in this subpart to 'next
higher classification' or comparable terms shall be
considered a reference to the classification related to
the next higher set of design values in Table I.
* * *
"(C) In addition to the requirements of
subparagraph (A) for those areas referred to in
subparagraph (A) and not covered by
subparagraph (13), the provisions referred to in
subparagraph (B) shall apply after 3 years from
the applicable attainmetit date unless the area
has attained the standard by the end of such 3-
year period.

"(D) If, after the date of the enactment
of the Clean Air Act Amendments of 1990,
the Administrator modifies the method of
determining compliance with the national
primary ambient air quality standard, a design
value or other indicator comparable to 0.140
in terms of its relationship to the standard
shall be used in lieu of 0.140 for purposes of
applying the provisions of subparagraplis (B) and
(C).

"(el REFERENCES TO TERMS.-—-(l) Any
reference to this subpart to a 'Marginal Area', a
'Moderate Area', a 'Serious Area', a 'Severe Area' or an
'Extreme Area shall be considered a reference to a
Marginal Area, a Moderate Area, a Serious Area, a
Severe Area, or an Extreme Area as respectively
classified under this section.





12a I 3a

APPENDIX D

ll.R. Rep. No. 101-952, 101st Cong., 2d Sess. (1990)
(Additional Provisions for Ozone Nonattainment
Areas)
(excerpt)

SEC. 103. ADDITIONAL PROVISIONS FOR OZONE
NONA1TAINMpN-[ AREAS.
Area based on the design value for the area. The design value
shall be calculated according to the interpretation
methodology issued by the Administrator most recently
before the date of the enactment of the Clean Air Act
Amendments of 1990. For each area classified under this
subsection, the primary standard attainment date for ozone
shall be as expeditiously as practicable but not later than the
date provided in table I.
Part D of title I of the Clean Air Act is amended by
adding the following new subpart at the end thereof:
TAt3t.E I


Area class
"Subpart 2 —Additional Provisions for
Ozone Nonattainment
Areas
"Sec. 181.
"Sec. 182.
"Sec. 183.
"Sec. 184.
"Sec. 185.

"Sec. 185A. "Sec. 185B.


SEC. 181. DATES.
Classifications and attainment dates.
Plan submissions and requirements.
Federal ozone measures.
Control of interstate ozone air pollution.
Enforcement for Severe and Extreme
ozone
nonattainment areas for failure to attain.
Transitional areas.
NO, and VOC study.


CLASSIFICATIONS AND
ATTAINMENT
l)esign Value'
l'riinar~- standard attainment date
Marginal 0 121 up tofi 138 years after enactment
Moderate 0 138 up to 0.160 6 years after enactment
Serious 0 160 U~ tO 0.180 9 years after enactment
Severe 0 180 up to 0 280 Ii years after enactment
Extreme . . . 0 280 and above 20 years after enactment

*I~he design value is measured in parts per million
(ppm).
**The primary standard attainment date is measured
from the date of the enactment of the Clean Air
Amendments of 1990.


"(2) Notwithstanding table 1, in the
case of a severe
area with a 1988 ozone design value
between 0.190 and 0.280
ppm, the attainment date shall be 17 years
(in lieu of 15 years)
after the date of the enactment of the
Clean Air Amendments
of 1990.


"(a) CLASSIFICATION AND ATTAINMENT DATES FOR
1989 NONATTAINMENT AREAS.—---( I) Each
area designated nonattainment for ozone pursuant to section
107(d) shall be classified at the time of such designation,
under table 1, by operation of law, as a Marginal Area, a
Moderate Area, a Serious Area. a Severe Area, or an Extreme


"(3) At the time of publication of the notice under
section 1 07(d)(4) (relating to area designations) for each
ozone nonattainment area, the Administrator shall publish a
notice announcing the classification of such ozone
nonattainment area. The provisions of section 172(a)(I)(B)
(relating to lack of notice and comment and judicial review)
shall apply to such classification.





I 4a
1 Sa


"(4) If an area classified under paragraph (I) (Table I)
would have been classified in another category if the design
value in the area were 5 percent greater or 5 percent less than
the level on which such classification was based, the
Administrator may. in the Administrator's discretion, within
90 days after the initial classification, by the procedure
required under paragraph (3), adjust the classification to place
the area in such other category. In making such adjustment,
the Administrator may consider the number of exceedances
of the national primary ambient air quality standard for
Ozone in the area, the level of pollution transport between
the area and other affected areas, including both intrastate
and interstate transport, and the mix of sources and air
pollutants in the area.

"(5) Upon application by any State, the
Administrator may' extend for I additional
year (hereinafter referred to as the 'Extension
Year') the date specified in table I of paragraph
(I) of this subsection if— "(A) the State has
complied with all
requirements and commitments pertaining to the area
in the applicable implementation plan, and

"(B) no more than I exceedance of the
national ambient air quality standard level for ozone
has occurred in the area in the year preceding the
Extension Year.

No more than 2 one-year extensions may be issued under this
paragraph for a single nonattainment area.
"(1) NEW DESIGNATIONS TO
NONATTAINMENT—Any area that is designated attainment
or unclassifiable for ozone under section 1 07(d)(4), and that
is subsequently redesignated to nonattainment for ozone
under section 107(d)(3), shall, at the time of the
redesignation, be classified by operation of law in accordance
with table I under subsection (a). Upon its classification, the
area shall be subject to the same requiretnents under section
110, subpart I of this part, and this subpart that would have
applied had the area been so classified at the time of the
notice under subsection (a)(3), except that any absolute, fixed
date applicable in connection with any such requirement is
extended by operation of law by a period equal to the length
of time between the date of the enactment of the Clean Air
Act Amendments of 1 990 and the date the area is classified
under this paragraph.

"(2) RECLASSIFICATION UPON FAILURE. TO
ATTAIN.——(A) Within 6 months following
the applicable attainment date (including any
extension thereof) for an ozone
nonattainment area, the Administrator shall
determine, based on the area's design value
(as of the attainment date), whether the area
attained the standard by that date. Except
for any Severe or Extreme area, any area
that the Administrator finds has not attained
the standard by that date shall be reclassified
by operation of law in accordance with table
I of subsection (a) to the higher of— "(i) the
next higher classification for the
area, or




"(b) NEW
RECLASSIFICATIONS


I)ESIGNATIONS


AND
"(ii) the
classification applicable
to the area's design
value as determined at
the time of the notice
required under
subparagraph (13).





1 7a I 6a

No area shall be reclassified as Extreme under clause (ii).

"(B) The Administrator shall publish a notice
in the Federal Register, no later than 6 months
following the attainment date, identifying each area
that the Administrator has determined under
subparagraph (A) as having failed to attain and
identifying the reclassification, if any. described under
subparagraph (A).
"(3) VOLUNTARY RECLASSIFICATION.—-The
Administrator shall grant the request of any State to
reclassify a nonattainment area in that State in accordance
with table I of subsection (a) to a higher classification. The
Administrator shall publish a notice in the Federal Register of
any such request and of action by the Administrator granting
the request.

(4) FAIWRE OF SEVERE AREAS TO ATTAIN
STANDARD.----(A) If any Severe Area fails to achieve the
national primary ambient air quality standard for ozone by
the applicable attainment date (including any extension
thereof). the fee provisions under section 185 shall apply
within the area, the percent reduction requirements of section
182(c)(2)(13) and (C) relating to reasonable further progress
demonstration and NO_ control) shall continue to apply to
the area, and the State shall demonstrate that such percent
reduction has been achieved in each 3-year interval after such
failure until the standard is attained. Any failure to make such
a demonstration shall be subject to the sanctions provided
under this part.
(B) In addition to the requirements of subparagraph
(A), if the ozone design value for a Severe Area referred to in
subparagraph (A) is above 0.140 ppm for the year of the
applicable attainment date, or if the area has failed to achieve
its most recent milestone under section 182(g), the new
source review requirements applicable under this subpart in
Extreme Areas shall apply in the area and the term 'major
source' and 'major stationary source' shall have the same
meaning as in Extreme Areas.

"(C) In addition to the requirements of subparagraph
(A) for those areas referred to in subparagraph (A) and not
covered by subparagraph (B), the provisions referred to in
subparagraph (B) shall apply after 3 years from the applicable
attainment date unless the area has attained the standard by
the end of such 3-year period.

"(D) If, after the date of the enactment of the Clean
Air Act Amendments of 1990, the Administrator modifies
the method of determining compliance with the national
primary ambient air quality standard, a design value or other
indicator comparable to 0.140 in terms of its relationship to
the standard shall be used in lieu of 0.140 for purposes of
applying the provisions of subparagraphs (B) and (C).

"(c) REFERENCES TO TERMS.—-(1) Any reference
to this subpart to a 'Marginal Area', a 'Moderate Area', a
'Serious Area', a 'Severe Area', or an 'Extreme Area' shall be
considered a reference to a Marginal Area, a Moderate Area, a
Serious Area, a Severe Area, or an Extreme Area as
respectively classified under this section.

"(2) Any reference in this subpart to 'next
higher classification' or comparable terms shall be





IXa I Qa

considered a reference to the classification related to
the next higher set of design values in table 1.
* * *


APPENDIX E
Brief of Respondent United States
Environmental Protection Agency,
Environmental
Defense Fund v. Browner
(D.C. Cir. No. 98-1363) (excerpt)
ORAL. AR(iUMENT SCI-IILDI II LI)
FOR SEPTEMBER 7, 1999

IN THE ITh~ITED STATES COURT OF APPEALS
FOR THE DISTRICI' OF COLUMBIA CIRCUIT


No. 98-1363


ENVIRONMENTAL DEFENSE FUNI), et al.,
Petitioners,
v.

CAROL M. BROWNER, et al.,
Respondent,


ON PETITION FOR REVIEW OF FINAL ACTION
OF THE U.S. ENVIRONMENTAL
PROTECTION AGENCY


FINAL BRIEF OF RESPONDENT
U.S. ENVIRONMENTAL PROTECTION AGENCY





20a 21a

OF COUNSEL:

JAN NI. TIERNEY
ornee of General Counsel
U.S. Environmental
Protection Agency
401 M Street, S.W.
Washington, D.C. 20604
(202) 260-5095


I)ate: June 21. 1999
LOIS J. SCHIFFER
Assistant Attorney General

Environment and Natural
Resources Division

ALICE I.. MATTICE
Attorney, Environmental
Defense Section
U.S. Department of Justice
P.O. Box 23986
Washington, D.C. 20026-3986
(202) 514-2327
* * *

Section 307(b) of the Act establishes a sixty-day
period for seeking judicial review of agency rules. 42 U.S.C.
§7607(b). This Court has "repeatedly held that temporal
litnitations on judicial review are jurisdictional in nature."
National Mining Ass 'n v. Department of the Interior, 70
F.3d 1345, 1350 (D.C. Cir. 1995); Eagle-Picher Indus. v.
EPA, 759 F.2d 905. 911-12 (i).C. Cir. 1985). The time limits
on petitions for review of agency rules reflect a deliberate
congressional choice to impose finality on agency decisions,
in order to conserve agency resources and provide guidance
and stability to those affected by the agency action. Eagle-
Picher, 795 F.2d at 911-12.

Petitioners' central claim in this case is that EPA's
criterion for phasing out the one-hour ozone NAAQS is
unlawful because it does not require redesignating "clean"
nonattaininent areas to attainment pursuant to section
107(d)(3)(E) of the Act, 42 U.S.C. § 7407(d)(3)(E)(iv) and
therefore does not require States to submit plans for
maintaining the one-hour NAAQS indefinitely after
attainment. Pet.Br. 2, 21. 31-33. 42. "~ I lo~~c~ cr. Ihat k~uc
was resolved by EPA's 1997 Rule. 40 ('[H ~ Stt 9th).

The 1997 Rule is clear on its face I he Rule statc~.
without qualification, that the one-hour standard "will no
longer apply" to an area once EPA determines that it ha~ air
quality meeting the 1-hour standard." 40 (FR § 50.9(b
Thus, "air quality meeting the I-hour standard" is the only
criterion for revocation. The Rule also specifically slates that
"[a~rea designations are codified in 40 CFR part 81." which
includes the list of designations of areas for the one-hour
ozone standard. Id. The inclusion of this reference provides
notice that the designations for the one-hour standard in 40
CUR. part 81 would be affected by EPA's action. Id.

Petitioners attempt to draw an artificial distinction
between the revocation of the one-hour standard (which they
appear to concede was addressed in the 1997 Rule) and the
allegedly "separate" decision to remove the associated
designations for revocation areas in 40 C.F.R. part 81.
Pet.Br.
30 1 lowever, designations are for a particular NAAQS and are
linked to that NAAQS. E.g., 42 U.S.C. §7407(d)( 1 )(A)(i)-(ii)
("attainment" and "nonattainment" designations defined as
meeting or not meeting a particular

5 Although they now challenge the removal of attainment or
unclassifiable designations in summary fashion (Pet.Br. 2, 4),
Petitioners did not object to the removal of attainment or unclassifiable
designations in their comments, and therefore cannot do so here. See
EDF Comments, JA 182-188; NRDC Comments, IA 189-194.
Linetnaster Switch Corp. s'. EPA, 938 F. 2d 1299,
1308-09 (D.C. Cir. 1991). In any event, Petitioners' alleged injury -
an asserted "gap" in PSD reqitirements for areas designated
attainment or unclassifiable - is illusory. As discussed above,
Petitioners read EPA's PSI regulations too narrowly. PSD will in fact
continue to apply to such areas. Supra 21.





22a 23a
20

NAAQS): see infra 43-44. In its implementation policy
statement issued contemporaneously with the ozone NAAQS
proposal, supra 13, EPA made clear that it viewed
revocation of the one-hour standard as also revoking the
associated designations: "the designations [for the one—hour
standard I would remain in effect so long as the current 1-
hour ozone NAAQS remains in effect," 61 Fed. Reg. at
65,754 -- and, by necessary implication, would not remain in
effect thereafter.

As discussed above, EPA initially proposed an
approach similar to the one Petitioners urge here, whereby
the Agency would delay revocation of the one-hour standard
(and thus the associated designations) until it made
designations for the revised eight-hour standard. Id.; see
supra 13. 1 lowever, EPA changed that approach in light of
its revised legal interpretation of the interplay of Subpart 2
and EPA's NAAQS revision authority. 62 Fed. Reg. at 38,873;
supra 13-14. In this context, the decision to revoke the one-
hour standard necessarily meant that EPA was also revoking
the designations associated with it. Petitioners were active and
highly sophisticated participants in both the NAAQS
rulemaking and the discussions on implementation, and could
not reasonably have understood otherwise.2t


Petitioners elsewhere assert (Pet.Br. 36, 38-39) that designations are
linked to "the pollutant ozone," not to particular NAAQS. As
demonstrated below, that argument is not supported by the
statutory language and is plainly incorrect. Infra 43-45.
2! FDF and NRDC submitted comments on the proposed ozone
and particulate matter NAAQS revisions and on EPA's proposed
implementation guidance. Further, EDF and NRDC were members
of the Subcommittee for Ozone, Particulate Matter, and Regional
Ilaze, part of the Clean Air Act Advisory Committee created pursuant
to the Federal Advisory' Committee Act. The Subcommittee's purpose was
to develop and recommend to EPA strategies for the implementation of the
ozone and
Further, if there were any room for doubt as to EPA's
meaning, the Presidential Memorandum, issued
contemporaneously with and referenced in the preamble to
the 1997 Rule (at 62 led. Reg. 38,856) removed it. The
Memorandum was explicit, stating that under the 1997 Rule
States "will not have to provide maintenance plans for those
areas that attain the lonell-hour standard." 62 Fed. Reg. at
38,424. Petitioners thus had clear notice that EPA was not
requiring States to develop maintenance plans. Because
maintenance plans are required only as a prerequisite for
redesignation under section 1 07(d)(3)(E), Petitioners also
had clear notice that EPA was not retaining the one-hour
designations that would otherwise have made maintenance
plans relevant.

Other participants in the NAAQS rulemaking
understood the implications of EPA's interpretation and
challenged aspects of it in the pending ATA litigation
cssncerning the revised ozone NAAQS. Indeed, those
arguments are premised on their recognition that the one-
hour standard (and thus the programs associated with it) would
not be revoked for an area until the standard was met, but
then would be revoked. Specifically, in ATA, industry and
State petitioners argued that the continued applicability of the
one-hour standard and Subpart 2 prohibited EPA from
revising the one-hour standard and associated designations at
all, in part because EPA's action created an alleged
"patchwork" of different control requirements associated with
different




particulate matter standards and the regional haze strategy, which
EPA was
then developing.





25a
24a
standards.22 Thus, the petitioners in ATA well recognized that
the 1997 Rule removed all planning requirements for the
one-hour standard for an area, once that standard was
revoked.
APPENDIX F

Appalachian Power Co., et al., Petition for D.C. Circuit
Review of EPA Ozone NAAQS Rulemaking


Petitioners here were similarly on notice of the issues
resolved by the 1997 Rule; indeed, they now challenge EPA's
determination regarding the interplay between the pre-
existing one-hour and the revised eight-hour standard from a
different perspective. Ilaving apparently made a decision not
to raise those issues at that time, they cannot do so now.
Further, even if Petitioners had some doubt,23 their proper
course would have been to file a protective petition for
review and let the Court decide whether the case was properly
brought. See Eagle-Picher, 759 F.2d at 914 (in the
analogous ripeness context, ". . . if there is any doubt about the
ripeness of a claim, petitioners must bring their challenge in a
timely fashion or risk being time-barred") (emphasis in
original). As Eagle-Picher instructs, id. at 912, the risk of
guessing wrong should fall on Petitioners, not the Court,
EPA, or the communities and States relying on EPA's rule.
* * *






22 .S~ee American Trucking Ass 'ns, Inc., et al. v. EPA, No. 97-1441
and

consolidated cases, Brief of Non-State Clean Air Act Petitioners and
Intervenors 22-25, JA 211-215; Brief of Petitioner States 5-9 & n.4, JA
2 17-221; Reply Brief of Petitioner States 8-10, JA 223.225.

23 Petitioners do not address the timeliness issue in their brief. At
most, they hint obliquely that the Revocation Rule was the first time they
understood that EPA was removing designations associated with the one-
hour standard, and was not requiring areas previously designated
nonattainment to prepare maintenance plans for the one-hour standard.
Pet. Br. 28. 43-44. As demonstrated above, their asserted confusioti is
not credible.
UNITED STATES COURT OF APPEALS
FOR THE DISTRICT OF COLUMBIA CIRCUiT

)
APPALACHIAN POWER COMPANY, et aL,) Petitioners,
v.
)
) Docket No.__
)
UNITED STATES ENVIRONMENTAL PROTECTION
AGENCY,
Respondent.
)
)
)
____________ ____________ ___________________ )
PETITION FOR REVIEW

Pursuant to Rule 15 of the Federal Rules of Appellate
Procedure, and § 307(b) of the Clean Air Act, 42 U.S.C. §
7607(b). Appalachian Power Company, et al., hereby
petition the Court to review a final rule issued by Respondent
United States Environmental Protection Agency. This rule
revises the national ambient air quality standards (NAAQS)
for ozone. The rule is entitled "National Ambient Air Quality
Standards for Ozone," and it was published on July 18, 1997
at 62 Federal Rettister 38,856-96. The Petitioners are listed
in Attachment A to this petition. Petitioners own and
operate lacilities that will be affected by this final rule. A
copy of the Federal Register notice announcing this final rule
is Attachment B to this petition.




26a


Respectfully submitted,


Henry V. Nickel
F. William Brownell
Lucinda Minton Langworthy
Ross S. Antonson
HUNTON & WILLIAMS
1900 K Street, NW., Suite 1200
Washington, D.C. 20006
(202) 955-1500

Counsel for Appalachian Power
Company, et al.

Dated: August 15, 1997