No. 99-1257
In the Supreme Court of the United States
CAROL M. BROWNER, ADMINISTRATOR OF
THE ENVIRONMENTAL PROTECTION AGENCY,
ET AL., PETITIONERS
v.
AMERICAN TRUCKING ASSOCIATIONS, INC., ET AL.
ON A WRIT OF CERTIORARI TO
THE UNITED STATES COURT OF APPEALS
FOR THE DISTRICT OF COLUMBIA CIRCUIT
BRIEF FOR THE PETITIONERS
SETH P. WAXMAN
Solicitor General
Counsel of Record
LOIS J. SCHIFFER
Assistant Attorney General
LAWRENCE G. WALLACE
Deputy Solicitor General
JEFFREY P. MINEAR
Assistant to the Solicitor
General
DAVID J. KAPLAN
MARY F. EDGAR
Attorneys
Department of Justice
Washington, D.C. 20530-0001
(202) 514-2217
GARY S. GUZY
General Counsel
GERALD K. GLEASON
MICHAEL L. GOO
JAN M. TIERNEY
KEVIN W. MCLEAN
Attorneys
Environmental Protection
Agency
Washington, D.C. 20460
QUESTIONS PRESENTED
1. Whether Section 109 of the Clean Air Act (CAA), 42 U.S.C. 7409, as interpreted
by the Environmental Protection Agency (EPA) in setting revised National
Ambient Air Quality Standards (NAAQS) for ozone and particulate matter,
effects an unconstitutional delegation of legislative power.
2. Whether the court of appeals exceeded its jurisdiction by reviewing,
as a final agency action that is ripe for review, EPA's preliminary preamble
statements on the scope of the agency's authority to implement the revised
"eight-hour" ozone NAAQS.
3. Whether provisions of the Clean Air Act Amendments of 1990 specifically
aimed at achieving the long-delayed attainment of the then-existing ozone
NAAQS restrict EPA's general authority under other provisions of the CAA
to implement a new and more protective ozone NAAQS until the prior standard
is attained.
In the Supreme Court of the United States
No. 99-1257
CAROL M. BROWNER, ADMINISTRATOR OF
THE ENVIRONMENTAL PROTECTION AGENCY,
ET AL., PETITIONERS
v.
AMERICAN TRUCKING ASSOCIATIONS, INC., ET AL.
ON A WRIT OF CERTIORARI TO
THE UNITED STATES COURT OF APPEALS
FOR THE DISTRICT OF COLUMBIA CIRCUIT
BRIEF FOR THE PETITIONERS
OPINIONS BELOW
The opinion of the court of appeals (Pet. App. 1a-69a) is reported at 175
F.3d 1027. The opinion on petitions for rehearing and dissenting statements
on denial of rehearing en banc (Pet. App. 70a-101a) are reported at 195
F.3d 4.
JURISDICTION
The decision of the court of appeals was entered on May 14, 1999. Petitions
for rehearing were granted in part and denied in part on October 29, 1999.
The petition for a writ of certiorari was filed on January 27, 2000, and
was granted on May 22, 2000. The jurisdiction of this Court is invoked under
on 28 U.S.C. 1254(1).
CONSTITUTIONAL, STATUTORY, AND REGULATORY PROVISIONS INVOLVED
Article I of the United States Constitution states in pertinent part as
follows:
All legislative Powers herein granted shall be vested in a Congress of the
United States.
The relevant sections of the Clean Air Act, 42 U.S.C. 7401 et seq., are
set forth in the petition appendix at Pet. App. 105a-126a. The EPA rules
at issue in this case are set forth in the petition appendix at Pet. App.
102a-104a.
STATEMENT
Section 109 of the Clean Air Act (CAA), 42 U.S.C. 7409, requires the Environmental
Protection Agency (EPA) to establish and periodically revise, based on the
latest scientific knowledge, primary National Ambient Air Quality Standards
(NAAQS) "requisite to protect" public health with "an adequate
margin of safety," and secondary NAAQS "requisite to protect"
other public interests. On July 18, 1997, EPA issued final rules revising
the NAAQS for two pollutants: particulate matter (PM) and ozone.1 EPA decided
to revise the PM and ozone standards because new scientific evidence showed
that the standards then in effect were not adequately protecting millions
of Americans from adverse health effects. For example, a quantitative risk
assessment indicated that PM concentrations below the standards EPA established
in 1987 may annually subject people in two urban areas alone, representing
about five million people, to hundreds of early deaths, thousands of hospital
admissions for respiratory illness, and tens of thousands of incidents of
respiratory symptoms in children. See 61 Fed. Reg. 65,638, 65,650-65,651
(1996).
On petitions for review, the court of appeals held that Section 109, as
interpreted by EPA in setting the revised PM and ozone standards, effected
an unconstitutional delegation of legislative authority. The court remanded
both rules for EPA to articulate an "intelligible principle" for
determining the degree of public health protection to be afforded by the
NAAQS. In addition, even though EPA had taken no final agency action to
implement the revised ozone NAAQS, the court issued an opinion, later modified,
interpreting the scope of EPA's implementation authority.
I. THE CLEAN AIR ACT'S NAAQS PROVISIONS
The Clean Air Act sets up a comprehensive and extraordinarily detailed program
for control of air pollution through a system of shared federal and state
responsibility.2 The NAAQS are a central feature of that program. Sections
108 and 109 of the Act require EPA to establish, review, and revise nationally
applicable standards for a small class of common air pollutants. 42 U.S.C.
7408-7409. The NAAQS establish permissible concentrations of those pollutants
in the "ambient," or outside, air. Section 110 of the Act then
calls on the States to impose controls on individual sources of air pollution
as necessary to attain and maintain the NAAQS. 42 U.S.C. 7410; see Train
v. NRDC, 421 U.S. 60, 78-79 (1975); Lead Indus. Ass'n v. EPA, 647 F.2d 1130,
1137 (D.C. Cir.), cert. denied, 449 U.S. 1042 (1980).
A. Air Quality Criteria And Standards
The NAAQS-setting process begins with identification of air pollutants that
are emitted from "numerous or diverse" sources and that "may
reasonably be anticipated to endanger public health or welfare." 42
U.S.C. 7408(a)(1). EPA has identified six such pollutants, commonly referred
to as "criteria" pollutants: sulfur oxides; nitrogen oxides; carbon
monoxide; lead; ozone; and particulate matter.
EPA must develop "air quality criteria" reflecting the "latest
scientific knowledge" on "all identifiable effects on public health
or welfare" that may result from each criteria pollutant's presence
in the ambient air. 42 U.S.C. 7408(a)(2). EPA generally records the scientific
assessments constituting air quality criteria in a "Criteria Document,"
which provides a rigorous analysis of all pertinent scientific information.
EPA also develops a "Staff Paper" to "bridge the gap"
between the scientific review and the judgments the Administrator must make
to set standards. See NRDC v. EPA, 902 F.2d 962, 967 (1990), opinion vacated
in part, 921 F.2d 326 (D.C. Cir.), cert. denied, 498 U.S. 1082 (1991). Both
documents undergo public notice and comment, as well as extensive scientific
peer-review by the Clean Air Scientific Advisory Committee (CASAC), an independent
committee established under the Act to advise the EPA Administrator on air
quality criteria and NAAQS. 42 U.S.C. 7409(d)(2)(B); see 62 Fed. Reg. 38,654
(1997).3
Relying on the "air quality criteria," EPA promulgates "primary"
and "secondary" NAAQS to protect against the adverse health and
welfare effects of each criteria pollutant. 42 U.S.C. 7409(a)(1) and (b)(1)-(2).
EPA must set "primary" standards at levels that, "in the
judgment of the Administrator," are "requisite to protect the
public health" with "an adequate margin of safety." 42 U.S.C.
7409(b)(1). EPA must set "secondary" standards at levels that
are "requisite to protect the public welfare" from any "known
or anticipated adverse effects." 42 U.S.C. 7409(b)(2).
To ensure that standards keep pace with advances in scientific knowledge,
EPA must review the air quality criteria and standards every five years
and revise them as "appropriate in accordance with [Sections 108 and
109(b)]." 42 U.S.C. 7409(d)(1). When setting or revising NAAQS, EPA
must consider and explain any significant departure from CASAC's recommendations.
42 U.S.C. 7607(d)(3).
Drawing on legislative guidance, EPA has developed decisional criteria to
ensure consistency among its NAAQS decisions. EPA considers, among other
public health factors, the nature and severity of health effects, the types
of health evidence, the kind and degree of uncertainties involved, and the
size and nature of the sensitive populations at risk. See, e.g., 97-1440
C.A. App. (PM App.) 1908. The court of appeals approved EPA's use of those
factors 20 years ago, Lead Indus., 647 F.2d at 1161, and EPA has since employed
them in numerous NAAQS rulemakings.4 The court reaffirmed its approval of
EPA's use of those factors in this case. Pet. App. 5a, 6a-7a.
B. Implementation Of Air Quality Standards
The CAA sets out a detailed process, resting on principles of federal-state
cooperation, to ensure that the air throughout the Nation "attains"
the NAAQS. Within three years of promulgating a new or revised NAAQS, EPA
must "designate" areas of the country as either "attainment"
(i.e., the area meets that NAAQS), "nonattainment" (i.e., the
area fails to meet that NAAQS), or "unclassifiable" (i.e., adequate
information is not available). 42 U.S.C. 7407(d)(1). Following designation,
EPA must establish the date by which nonattainment areas shall attain that
NAAQS (i.e., the area's attainment date). See 42 U.S.C. 7502(a). The CAA
provides for each State to develop, for EPA's approval, a state implementation
plan (SIP) that sets forth pollution control measures necessary to attain
all NAAQS by the applicable attainment dates. See 42 U.S.C. 7410(a), 7502(c).
See generally Union Elec. Co. v. EPA, 427 U.S. 246 (1976); Train, supra.
If a State fails to develop an adequate SIP, then EPA must promulgate measures
to attain the NAAQS in the form of a federal implementation plan (FIP).
42 U.S.C. 7410(c).
Congress laid the foundation for the CAA's current regulatory scheme through
the Clean Air Act Amendments of 1970 and the Clean Air Act Amendments of
1977. See note 2, supra.5 Congress built further on that foundation through
the Clean Air Act Amendments of 1990, Pub. L. No. 101-549, 104 Stat. 2399,
which address, among other things, the continuing problem of NAAQS nonattainment.
Congress retained with limited modifications the basic planning obligations
in Section 110 for States to implement all NAAQS, including "any revision
thereof," in all areas of the Nation, regardless of their designation
status. 42 U.S.C. 7410(a)(1). Congress, however, adjusted the attainment
obligations for the NAAQS then in existence and revised the attainment obligations
that would result if EPA promulgated new or revised NAAQS. As a consequence,
the 1990 Amendments contain a complicated set of new implementation obligations,
set out in the CAA's Title I, Part D, for nonattainment areas. See 42 U.S.C.
7501-7515 (1994 & Supp. III 1997).
First, Congress modified the general nonattainment provisions that it had
previously set out in Part D, see note 5, supra, and placed them in a new
subpart, titled "Subpart 1 -Nonattainment Areas in General." 42
U.S.C. 7501-7509a (1994 & Supp. III 1997). Section 172(a) of that Subpart
includes a new scheme for EPA to classify and establish attainment dates
for nonattainment areas, based upon various factors, including the severity
of the area's pollution problem. 42 U.S.C. 7502(a).6 That scheme applies
to all nonattainment areas "with respect to any [NAAQS] (or any revised
standard, including a revision of any standard in effect on November 15,
1990)." 42 U.S.C. 7502(a)(1)(A).
Second, Congress created a series of new subparts in Part D, which address
nonattainment of each of the then-existing NAAQS. See 42 U.S.C. 7511-7514a
(1994 & Supp. III 1997) (Subpts. 2-5, Pt. D, Tit. I). Subpart 2 contains
specific implementation provisions for the ozone NAAQS, which apply in addition
to the general implementation provisions in Subpart 1. See 42 U.S.C. 7511-7511f
(1994 & Supp. III 1997) ("Subpart 2-Additional Provisions for Ozone
Nonattainment Areas").7 Those provisions address the continued nonattainment,
as of 1990, of the primary ozone NAAQS then in existence (i.e., the "one-hour"
ozone standard). Section 181(a)(1) of that Subpart sets out specific classifications
and attainment dates that apply "by operation of law" for areas
that, prior to the 1990 Amendments, were designated nonattainment under
the one-hour ozone standard. 42 U.S.C. 7511(a)(1).8
Third, Congress reconciled EPA's general authority under Section 172(a)
of Subpart 1 to classify and establish attainment dates for nonattainment
areas with the attainment schedule in Section 181(a)(1) of Subpart 2 (and
in other Subparts of Part D). Congress provided that EPA's authority in
Section 172(a) shall not apply to "nonattainment areas for which classifications
[or "attainment dates"] are specifically provided under other
provisions of [Part D]." 42 U.S.C. 7502(a)(1)(C) and (a)(2)(D). Thus,
to the extent that Section 181(a)(1) specifically provides classifications
and attainment dates for areas designated nonattainment for the one-hour
ozone standard, EPA may not invoke Section 172(a) to establish classifications
and attainment dates for that ozone NAAQS.
II. THE PARTICULATE MATTER AND OZONE RULEMAKING PROCEEDINGS
On July 18, 1997, EPA promulgated revised primary and secondary air quality
standards for PM and ozone. In each rulemaking, the Criteria Documents and
Staff Papers underwent several rounds of review by CASAC, public comment,
and revision by EPA. Ultimately, CASAC notified EPA that the PM and ozone
Criteria Documents provided an adequate scientific basis for regulatory
decisions. PM App. 3151; 97-1441 C.A. App. (Ozone App.) 235. CASAC also
notified EPA that the PM and ozone Staff Papers, which among other things
identified ranges of potential standards for the Administrator's consideration,
were likewise scientifically adequate. PM App. 3162; Ozone App. 236-238.
As required by Section 109, EPA then set new PM and ozone standards based
on the revised air quality criteria. EPA provided exhaustive explanations
of the basis for the two decisions, which we briefly summarize below.
A. The Particulate Matter Rule
Particulate matter encompasses a broad class of chemically and physically
diverse liquid and solid particles. 62 Fed. Reg. at 38,653. Scientists generally
distinguish between two categories of PM-fine and coarse. Both were encompassed
by the "PM10" standards that EPA set in 1987.9
EPA revised the PM standards based on new scientific studies that had emerged
since EPA's last PM review, including an extensive body of epidemiological
studies on exposure to PM pollution.10 More than 60 such studies showed
statistically significant positive associations between exposure to PM air
pollution and serious adverse health effects, including premature death
and illness severe enough to require hospital admission. 61 Fed. Reg. at
65,641-65,643; PM App. 1375-1778, 1801-1845 (Criteria Document). The same
evidence identified several large "sensitive" populations that
may experience health effects at lower PM concentrations, or more severely,
than the general public. 61 Fed. Reg. at 65,644. Those populations included
the elderly, children, and people with cardiovascular and respiratory disease,
including asthma. Ibid.; PM App. 1991-1993.
The scientific studies indicated that those very serious health effects
were "attributable to PM at levels below the current NAAQS." PM
App. 1870. The Administrator concluded, based on the nature of the health
effects and the huge size of the affected populations, 62 Fed. Reg. at 38,657,
that the studies provided "strong evidence that the current PM10 standards
do not adequately protect public health, and that revision of the standards
is not only appropriate, but necessary," id. at 38,665.
The Administrator decided she could best protect against the health risk
posed by PM by adopting two sets of standards: (1) PM2.5 NAAQS to control
fine particles, which were likely responsible for those health effects associated
with PM concentrations at or below the 1987 NAAQS; and (2) PM10 NAAQS to
provide continued control of inhalable coarse particles. 62 Fed. Reg. at
38,665-38,668. The Administrator selected the annual PM2.5 NAAQS as the
"generally controlling" standard to reduce both long-term and
peak PM2.5 concentrations and adopted the 24-hour PM2.5 NAAQS only to address
unusual circumstances. Id. at 38,669.
To select the levels requisite to protect public health, with an adequate
margin of safety, the Administrator relied chiefly on epidemiological studies
that employed direct measures of fine particles, such as PM2.5. 62 Fed.
Reg. at 38,675-38,676 & n.41. "[P]lacing greatest weight on those
studies that were clearly statistically significant," the Administrator
concluded that an annual PM2.5 standard of 15 micrograms per cubic meter
of air (µg/m3) "will provide an adequate margin of safety against
the effects observed in these epidemiological studies." Id. at 38,676.
That level is just below the range of 15.7 to 21 µg/m3 that encompasses
the annual mean PM2.5 levels in locations where epidemiological studies
had shown statistically significant positive associations between fine particles
and adverse health effects. Ibid.; PM App. 3506-3521. The Administrator
acknowledged that "the possibility of effects at lower annual concentrations
cannot be excluded," but she noted that the evidence supporting that
possibility-which did not rise to the level of statistical significance-is
"highly uncertain," and therefore did not warrant establishment
of a lower annual standard. 62 Fed. Reg. at 38,675-38,676; PM App. 3506-3521.11
B. The Ozone Rule
Ground-level ozone is a ubiquitous pollutant formed in the air from the
interaction in sunlight of nitrogen oxides and volatile organic compounds
emitted from many sources. It is the principal component of smog and a powerful
lung irritant. See 62 Fed. Reg. at 38,858.12
EPA's review of the latest scientific knowledge on ozone disclosed a large
body of new research demonstrating associations between adverse health effects
and exposure to ozone over longer periods, at more moderate levels of exertion,
and at lower concentrations than had been shown by the studies available
in 1979, when EPA had promulgated an ozone standard of 0.12 parts per million
(ppm) averaged over one hour (the one-hour standard). 62 Fed. Reg. at 38,859;
61 Fed. Reg. at 65,719-65,720. Some of those new studies showed health effects
associated with prolonged (six to eight hours) exposure to ozone levels
as low as 0.08 ppm. 62 Fed. Reg. at 38,859. The studies also showed that,
in comparison to the general population, active children and workers who
regularly engage in outdoor activities are at greater risk of experiencing
adverse health effects from exposure to ozone. Ibid. In addition, people
with pre-existing respiratory disease are more susceptible than others to
the effects of ozone. Ibid. See generally Ozone App. 1460-1648, 1740-1780,
3770-3786, 3875-3881 (Criteria Document).
The scientific evidence convinced the Administrator that she should revise
both the averaging time and the concentration level of the 1979 one-hour
ozone standard. 62 Fed. Reg. at 38,863. She determined, and CASAC concurred,
that an eight-hour standard was more consistent than a one-hour standard
with the kind of prolonged exposures at which the scientific evidence showed
children and others in at-risk populations were experiencing health effects
of concern. Id. at 38,861. In addition, EPA's quantitative exposure and
risk assessments showed that an eight-hour standard would provide significantly
greater nationwide uniformity in health protection than a one-hour standard.
Id. at 38,862.
To select a concentration level for the eight-hour averaging period, EPA
employed a weight-of-evidence approach. Using, with CASAC's concurrence,
guidelines of the American Thoracic Society, EPA considered the medical
significance, or "adversity," of ozone-related health effects,
which can vary widely. 62 Fed. Reg. at 38,860.13 EPA also considered the
public health implications of its conclusions regarding effects on individuals.
For that purpose, EPA prepared quantitative exposure and risk assessments
that used (among other information) data from human clinical studies to
estimate, for various levels of ozone in the ambient air, the number of
people within certain sensitive population groups likely to experience effects
that would interfere with normal activity. Id. at 38,861-38,873.
EPA narrowed its consideration to the range of 0.07 ppm to 0.09 ppm for
an eight-hour ozone standard. The upper bound for consideration could be
no higher than 0.09 ppm because the exposure and risk assessments showed
that the risks associated with an eight-hour standard of 0.09 ppm were "the
same or only marginally smaller" than those associated with the 1979
one-hour standard, which EPA and CASAC agreed provided "little, if
any, margin of safety." 62 Fed. Reg. at 38,863-38,864. The lower bound
for consideration also emerged from the scientific evidence, including in
particular: (1) the absence of any human clinical studies on exposures below
0.08 ppm, id. at 38,863; and (2) quantitative exposure assessments showing
that a 0.07 ppm standard would, over the course of an ozone season, limit
"exposures of concern" to "essentially zero," ibid.14
The Administrator explained why she found significant differences in the
character of the available scientific evidence regarding ozone exposures
within the range identified. She compared a 0.08 ppm standard to a 0.09
ppm standard on the basis of a number of factors, including estimates of
the relative number of children that would experience adverse health effects,
the relative frequency of such effects, and relative increases in hospital
admissions. Those estimates and estimates of occurrences of "exposures
of concern" under a standard of 0.09 ppm counseled against use of that
concentration. 62 Fed. Reg. at 38,867-38,868; see note 14, supra. For example,
EPA estimated that a 0.09 ppm standard would allow more than three times
as many children to experience exposures of concern than would a standard
of 0.08 ppm. 62 Fed. Reg. at 38,868.
The Administrator also explained why she concluded that a standard set below
0.08 ppm would be more stringent than requisite to protect against adverse
effects of public health significance. See 62 Fed. Reg. at 38,863-38,868.
With CASAC's concurrence, EPA had reasonably assumed, for purposes of the
quantitative risk assessment, that there is no "effects threshold"
for the categories of health effects measured in human clinical studies-lung
function decreases and respiratory symptoms. EPA therefore assumed that
those effects may occur at ozone levels below 0.08 ppm. See 61 Fed. Reg.
at 65,725-65,726. As to those effects, the record showed that average responses
caused by exposures even at 0.08 ppm were "typically small or mild
in nature." 62 Fed. Reg. at 38,864. The Administrator recognized that
repeated exposures at the 0.08 ppm level could potentially produce adverse
effects for some unusually sensitive individuals, ibid., but the record
indicated that the "most certain" ozone-related effects at and
below that level, even when adverse, are "transient and reversible,"
id. at 38,868. Moreover, the quantitative exposure and risk assessments
showed that a standard set at 0.08 ppm would significantly reduce the number
of such exposures. See ibid. As for more serious health effects, EPA lacked
clinical data indicating the existence of an exposure-response relationship
at ozone levels below 0.08 ppm. See id. at 38,863-38,864, 38,868; Ozone
App. 1962. Furthermore, none of the CASAC advisors recommended setting the
revised NAAQS at a level below 0.08 ppm. 62 Fed. Reg. at 38,864-38,865,
38,868. Accordingly, the Administrator reasonably concluded, based on the
available evidence, that an eight-hour ozone standard of 0.08 ppm would
be sufficient to protect public health with an adequate margin of safety.
Id. at 38,868-38,869.15
In addition to explaining the basis for its decisions, EPA responded, as
required by the Act, 42 U.S.C. 7607(d)(6)(B), to all significant public
comments. Various commenters had argued that, by enacting in 1990 specific
provisions regarding implementation of the one-hour ozone standard then
in effect, e.g., 42 U.S.C. 7511(a)(1), Congress had effectively codified
that standard and precluded EPA from revising it. In response, EPA explained
that its authority to revise the one-hour ozone standard was clear on the
face of the Act and then briefly and generally discussed how some of the
Act's provisions would apply to implementation of a revised ozone standard.
The sole purpose of that discussion was to respond fully to the comments
arguing that the 1990 Amendments curtailed EPA's authority to revise the
ozone standard. 62 Fed. Reg. at 38,884-38,885; see App., infra, 1a-6a (reproducing
the preamble discussion).
III. THE PROCEEDINGS BELOW
Numerous industry groups, a public interest group, and several States and
individuals challenged the revised PM and ozone NAAQS. The court of appeals
rejected many of the challenges, but nevertheless remanded both final rules
to EPA with instructions "to develop a construction of the act"
that would satisfy this Court's "nondelegation doctrine." Pet.
App. 4a, 5a. Relying on a theory that the parties had not extensively briefed,
the court concluded that EPA's interpretation of Section 109 of the CAA
"effects an unconstitutional delegation of legislative power."
Id. at 4a. According to the majority, EPA's interpretation of the Act leaves
it "free to pick any point between zero and a hair below * * * London's
Killer Fog," a notorious 1952 incident in which air pollution may have
caused approximately 4000 deaths over four days. Id. at 13a. Judge Tatel
dissented from that portion of the opinion, emphasizing that the majority
"ignore[d] the last half-century of Supreme Court nondelegation jurisprudence"
upholding numerous statutes containing fewer guiding principles than Section
109. Id. at 59a.
In the ozone case (No. 97-1441), the court of appeals rejected the industry
petitioners' argument that the 1990 Amendments, which established mandatory
classifications and attainment dates for the primary one-hour ozone standard
then in effect, see CAA § 181, 42 U.S.C. 7511, precluded EPA from revising
the ozone NAAQS. Pet. App. 34a-37a. That ruling resolved the issue before
the court. The court of appeals nevertheless went on to direct what EPA
may and may not do when it proceeds-in the future-to implement the ozone
NAAQS. The court ruled that EPA cannot implement the revised ozone NAAQS
through Section 172 (42 U.S.C. 7502), but must instead employ Section 181(a)
(42 U.S.C. 7511(a)). Pet. App. 34a, 37a-44a. Because the requirements of
Section 181(a) are tied to the one-hour standard, the court's ruling effectively
meant, as the court itself recognized, that EPA could promulgate, but could
not enforce, the revised ozone NAAQS. Id. at 57a.16
EPA and other parties filed petitions for rehearing and suggestions for
rehearing en banc. The panel granted rehearing, in part, to modify its opinion
regarding EPA's authority to implement the revised ozone standard. Pet.
App. 71a-72a. The panel rejected EPA's argument that, because EPA had yet
to take final action implementing the revised ozone NAAQS, the court lacked
jurisdiction to consider which provisions of the Act would govern implementation,
including the specification of classifications and attainment dates. Id.
at 78a-80a. The court found that EPA's statements on that issue in the preamble
accompanying the revised ozone standard, made in response to industry comments
challenging EPA's authority to promulgate that standard, see 62 Fed. Reg.
at 38,884-38,885, constituted final agency action on the question of implementation
that was ripe for judicial review. Pet. App. 78a-80a.
On the merits, the panel modified its opinion to state that "EPA can
enforce a revised primary ozone NAAQS only in conformity with Subpart 2."
Pet. App. 81a. Judge Tatel wrote separately because he disagreed with the
panel majority's reasoning. Pet. App. 83a-89a. He found the statute ambiguous
and would have deferred to EPA's interpretation. Id. at 84a. Judge Tatel
nevertheless concurred in the judgment because, in his view, the modified
decision would allow EPA to implement the revised ozone standard under Subpart
1 once an area has attained the one-hour standard in accordance with Subpart
2. Id. at 89a. As to the nondelegation issue, the panel denied EPA's petition
for rehearing. It expressly rejected EPA's view that the relevant provisions
of the Act set out intelligible principles that limit the agency's discretion.
Id. at 72a-76a. Judge Tatel again dissented. Id. at 89a, 97a-99a.
The court also denied EPA's suggestion for rehearing en banc, with five
of the court's eleven active judges voting in favor of rehearing en banc,
and four voting against it. Pet. App. 90a-92a. Judge Silberman and Judge
Tatel each wrote statements dissenting from the denial of rehearing en banc
on the nondelegation issue. Id. at 92a-96a, 97a-99a. Chief Judge Edwards
and Judge Garland joined in Judge Tatel's statement. Id. at 97a.
SUMMARY OF ARGUMENT
1. The court of appeals incorrectly concluded that Section 109 of the CAA,
as interpreted by EPA, violates the nondelegation doctrine. Section 109's
requirement that NAAQS must be set at a level "requisite to protect"
public health with "an adequate margin of safety" does not constitute
an unconstitutional grant of legislative power. Furthermore, the nondelegation
doctrine does not impose a constitutional obligation on EPA to go beyond
what Congress has directed and announce a "determinate criterion for
drawing lines." Pet. App. 5a-6a. The court's novel view that the Constitution
demands such a precise criterion-and that the agency must supply it-is fundamentally
unsound.
Congress has directed EPA to establish NAAQS by reference to the CAA's detailed
requirements, which set out intelligible principles to guide EPA's actions.
The CAA's directives, which are more specific than many statutory directives
that this Court has upheld, amply ensure that Congress has not abdicated
its power to make the laws. The CAA prescribes the legal standards governing
EPA's decisions, factors that EPA must consider in making its decisions
under Section 109, a body of experts that EPA must consult on those decisions,
and a rigorous set of procedures that EPA must follow. In short, the Act
establishes multiple specific restrictions that cabin EPA's discretion in
setting NAAQS. The nondelegation doctrine does not require more.
The court of appeals' direction that EPA must narrow the scope of Congress's
direction is not only unprecedented, it also is contrary to the purpose
of the nondelegation doctrine. The Court has developed that doctrine to
enforce the Constitution's requirement that Congress alone shall exercise
legislative power. The court of appeals has improperly employed the doctrine
to expand the scope of its judicial review authority beyond the limits that
Congress has set through the CAA's statutory standards for review of agency
action. The court of appeals' conclusion that EPA must provide a "determinate,
binding standard" for setting NAAQS is not only inconsistent with the
CAA's recognition that NAAQS must be set in the face of scientific uncertainties,
but it is also likely impracticable. An Executive Branch agency, acting
pursuant to congressional direction, is entitled to assess the available
evidence and make a reasoned judgment on the proper regulatory standard.
Contrary to the court of appeals' characterization, EPA's interpretation
of its authority did not leave it free to set a NAAQS at any point between
zero and "a hair below" an air pollution level that killed 4000
people in four days. To the contrary, the rulemaking records reveal that
EPA properly construed and applied limitations on its discretion. It provided
reasoned explanations, supported by the record evidence, for why it chose
the challenged PM and ozone standards in light of continuously evolving
scientific knowledge.
2. The court of appeals also erred in prematurely deciding the scope of
EPA's authority to implement and enforce the revised standard. The court
did so by subjecting EPA's preamble statements on how it may implement the
revised ozone standard to judicial review. Those preamble statements do
not constitute judicially reviewable agency action. EPA made those statements
to respond to comments that the implementation scheme in Section 181(a)(1)
negates EPA's authority to promulgate a revised ozone standard. Once the
court of appeals rejected that challenge to EPA's NAAQS revision authority,
its task was done. It should not have treated EPA's preamble statements
that explain the basis for EPA's ozone NAAQS as separate agency action that
is independently subject to judicial review.
Even if EPA's preamble remarks about what future steps it intends to take
to implement the ozone NAAQS constituted "agency action," they
are certainly not "final" agency action. Those statements are
not the consummation of the agency's decisionmaking process and they do
not create any rights or obligations. They simply express EPA's current
views on some aspects of the complicated implementation process that EPA
and the States will undertake through future rulemakings. The CAA sets out
a detailed procedure for conducting those rulemakings. Under the statutory
process, EPA will issue final rules on specific subjects in an orderly fashion,
and each final rule will be subject to judicial review when the rule is
ripe for the court's review.
Even if EPA's preamble statements constituted final agency action, they
would not be ripe for review. The issue of how to reconcile the numerous
provisions governing implementation is, at this stage, too abstract. The
courts do not have the benefit of EPA's explanation of how and why it has
implemented a NAAQS in a particular way, which would be available only after
EPA has completed the relevant rulemakings, including any required public
notice and response to comments, and taken final action that actually implements
the standard. The courts should not review those complex implementation
issues until EPA has had the opportunity to work through the various implementation
provisions, reconcile any conflicts, make any policy judgments, and apply
its expertise to resolve any ambiguities in the statute.
3. If the Court decides to reach the merits, it should rule that the court
of appeals' modified decision is incorrect, even as interpreted by Judge
Tatel in his partial concurrence. The CAA authorizes EPA to implement the
revised national ozone standard contemporaneously throughout the country,
regardless of whether an area is violating the one-hour ozone standard.
The court of appeals' decision would inappropriately force EPA to delay
protecting the public from the very health consequences that warrant a NAAQS
revision in the first place, until the area attains an air quality standard
that EPA has concluded is inadequate to protect public health. Congress
could not have intended that implausible result.
The statutory provision on which the court of appeals primarily relied-Section
181(a) of Subpart 2-implements only the one-hour ozone standard. It does
not apply to the revised eight-hour ozone NAAQS or otherwise curtail EPA's
authority to implement that standard under Section 172(a) and any other
applicable provision of Subpart 1. Moreover, because the Act requires the
attainment of all NAAQS "as expeditiously as practicable," 42
U.S.C. 7502(a)(1)(A), 7511(a)(1), the court of appeals erred in concluding
that EPA must delay implementation of the eight-hour NAAQS in any area until
it attains the one-hour ozone standard.
ARGUMENT
I. THE COURT OF APPEALS ERRONEOUSLY APPLIED THE NONDELEGATION DOCTRINE
The nondelegation doctrine is "rooted in the principle of separation
of powers." Mistretta v. United States, 488 U.S. 361, 371 (1989). "The
fundamental precept of the delegation doctrine is that the lawmaking function
belongs to Congress, U.S. Const., Art. I, § 1, and may not be conveyed
to another branch or entity." Loving v. United States, 517 U.S. 748,
758 (1996). The nondelegation doctrine does not require, however, that Congress
dictate every detail of a regulatory program. Congress may rely on the other
branches to make rules that carry out its will. See Loving, 517 U.S. at
758; Mistretta, 488 U.S. at 372.
This Court's application of the nondelegation doctrine has been "driven
by a practical understanding that in our increasingly complex society, replete
with ever changing and more technical problems, Congress simply cannot do
its job absent an ability to delegate power under broad general directives."
Mistretta, 488 U.S. at 372. The Court has accordingly recognized that Congress
does not violate the Constitution "merely because it legislates in
broad terms, leaving a certain degree of discretion to executive or judicial
actors." Touby v. United States, 500 U.S. 160, 165 (1991); see Yakus
v. United States, 321 U.S. 414, 425 (1944) (Congress may "call for
the exercise of judgment, and for the formulation of subsidiary administrative
policy within the prescribed framework").
The Court has specifically emphasized that Congress does not violate the
nondelegation doctrine if "Congress clearly delineates the general
policy, the public agency which is to apply it, and the boundaries of this
delegated authority." Mistretta, 488 U.S. at 372-373 (quoting American
Power & Light Co. v. SEC, 329 U.S. 90, 105 (1946)); Skinner v. Mid-America
Pipeline Co., 490 U.S. 212, 218-219 (1989). "Only if we could say that
there is an absence of standards for the guidance of the [agency's] action,
so that it would be impossible in a proper proceeding to ascertain whether
the will of Congress has been obeyed, would we be justified in overriding
its choice of means for effecting its declared purpose." Mistretta,
488 U.S. at 379 (emphasis added) (quoting Yakus, 321 U.S. at 425-426).
A. Section 109 Of The Clean Air Act Does Not Constitute An Unconstitutional
Grant Of Legislative Power
Contrary to the court of appeals' conclusion, Section 109 easily satisfies
this Court's "intelligible principle" standard. This Court's decisions
leave no doubt that Section 109 does not amount to an invalid delegation
of legislative power and that EPA can properly fulfill the responsibilities
that Section 109 assigns. Section 109's directives "are far more specific
than the sweeping statutory delegations consistently upheld by [this] Court
for more than sixty years." Pet. App. 97a (Tatel, J., dissenting from
denial of rehearing en banc); see also id. at 93a (Silberman, J., dissenting
from denial of rehearing en banc); id. at 59a-60a (Tatel, J., dissenting)
(collecting cases).
The starting point for nondelegation analysis is the CAA's language, which
must be read in context with due regard to the Act's purpose and history.
See American Power & Light, 329 U.S. at 104. A perusal of this comprehensive
legislation, which Congress has repeatedly amended in light of new knowledge
and developments (see note 2, supra), reveals that Congress has exercised
its lawmaking function with exacting care. The Act, which now occupies more
than 280 pages in the United States Code, is extraordinarily detailed and
prescriptive. As the Act has evolved, Congress has consistently recognized
the need to rely on an Executive Branch agency's scientific resources and
expertise in executing the legislative purposes. At the same time, Congress
has carefully channeled EPA's discretion through increasingly detailed substantive
and procedural requirements.
Section 109(b)(1) of the Act requires that primary NAAQS be set at levels
"requisite to protect the public health" with an "adequate
margin of safety" and that secondary standards be set at levels "requisite
to protect the public welfare." 42 U.S.C. 7409(b)(1). To warrant the
setting of a NAAQS, a pollutant must "reasonably be anticipated to
endanger public health or welfare" and be emitted from "numerous
or diverse * * * sources." 42 U.S.C. 7408(a)(1)(A)-(B). Each standard
must be based on "air quality criteria" that reflect "the
latest scientific knowledge," 42 U.S.C. 7408(a)(2), including information
on "variable factors" that "may alter the effects on public
health," as well as interactions with other pollutants "to produce
an adverse effect on public health or welfare." 42 U.S.C. 7408(a)(2)(A)-(B).
Further, the Act establishes and prescribes the composition of CASAC (see
p. 4, supra) and requires EPA to consider, and explain any significant departure
from, CASAC's advice on revision of the air quality criteria and standards.
42 U.S.C. 7409(d)(2), 7607(d)(9).17
Section 307(d) of the Act, 42 U.S.C. 7607(d), which sets out the procedures
for rulemaking and judicial review, further ensures that EPA adheres to
a "disciplined decisionmaking process" in setting NAAQS. See Pet.
App. 63a (Tatel, J., dissenting). Congress has prescribed a rulemaking process
that ensures extensive public participation. EPA must discuss the data,
methodology, and major legal and policy interpretations underlying proposed
NAAQS, 42 U.S.C. 7607(d)(3); provide a reasoned explanation for its decision,
42 U.S.C. 7607(d)(6)(A); and respond to significant comments, 42 U.S.C.
7607(d)(6)(B). EPA's rule is then subject to judicial review. 42 U.S.C.
7607(b)(1) and (d)(9).18
The Act's legislative history "provides additional guidance for [EPA's]
consideration of the statutory factors" that is relevant for assessing
the constitutionality of Section 109. Mistretta, 488 U.S. at 376 n.10. That
legislative history, which the court below failed to consider, indicates
that the health effects justifying a NAAQS must be "adverse,"
Lead Indus., 647 F.2d at 1152 (citing S. Rep. No. 1196, 91st Cong., 2d Sess.
10 (1970) (S. Rep. 1196)), in the sense that they are medically significant
and not merely detectable, id. at 1155 n.51. To provide an "adequate
margin of safety," standards must be "preventative or precautionary,"
reflecting an emphasis on the "predominant value of protection of public
health." Ibid. (quoting H.R. Rep. No. 294, 95th Cong., 1st Sess. 49
(1977) (H.R. Rep. 294)); id. at 1155 (EPA must "err on the side of
caution"). Furthermore, public health is distinct from individual health;
the standards must protect sensitive populations, such as asthmatics, id.
at 1152, but not the most sensitive individuals within those populations.
See S. Rep. 1196, at 10 (EPA must consider effects on "a representative
sample of persons comprising the sensitive group rather than to a single
person in such a group."), in 1 Staff of the Senate Comm. on Pub. Works,
93d Cong., 2d Sess., A Legislative History of the Clean Air Act Amendments
of 1970, at 410 (Comm. Print 1974).
In short, Congress has placed "multiple specific restrictions"
on EPA's discretion in setting and revising NAAQS that satisfy the constitutional
requirements of the nondelegation doctrine. Touby, 500 U.S. at 167. Those
restrictions are at least as rigorous as those in Touby and other nondelegation
cases, many of which in fact involved far less prescriptive legislation.
See id. at 165.19 The Act prescribes the legal standard EPA is to apply,
factors that EPA is to consider, a body of experts that EPA is to consult,
and procedures that EPA must follow in making its highly technical scientific
judgments about the health and welfare effects of particular pollutants.
As in American Power & Light Co., the Act provides "a veritable
code of rules" for EPA to follow in fulfilling Congress's will. 329
U.S. at 105; see Yakus, 321 U.S. at 426.20
B. The Court Of Appeals Improperly Employed The Nondelegation Doctrine To
Expand The Scope Of Its Review
This Court's nondelegation doctrine preserves the Constitution's separation
of powers by ensuring that Congress does not abdicate its power to make
laws. The court of appeals transformed that doctrine, however, into a judicial
check on executive power. The court of appeals employed the nondelegation
doctrine as an additional means, beyond the explicit judicial review provisions
of the CAA, to supervise the exercise of administrative discretion. See
Pet. App. 14a. The court directed EPA to "develop[] determinate, binding
standards for itself" to reduce the likelihood that EPA would "exercise
the delegated authority arbitrarily" and to "enhance the likelihood
that meaningful judicial review will prove feasible." Ibid. That novel
use of the nondelegation doctrine departs from the doctrine's purpose, it
has no basis in this Court's precedents, and it trenches on Congress's power
to specify appropriate standards for judicial review of executive action.
See id. at 93a (Silberman, J., dissenting from the denial of rehearing en
banc).
The court of appeals viewed the nondelegation doctrine as requiring Congress,
or agencies interpreting the intent of Congress, to delineate a "determinate
criterion for drawing lines." Pet. App. 6a. In the court's view, the
Constitution requires that EPA supply a single principle that would enable
the court to conclude that EPA's NAAQS are set at what the court deems exactly
the "right" level. See id. at 10a-11a, 73a. That approach, however,
is inconsistent with the court's limited role in reviewing NAAQS. The CAA
makes clear that EPA's actions in setting NAAQS are subject to review under
the arbitrary or capricious standard of judicial review. See 42 U.S.C. 7607(d)(9).
Under that standard, the court is limited to examining whether EPA's action
"was based on consideration of the relevant factors and whether there
has been a clear error of judgment." Citizens to Preserve Overton Park,
Inc. v. Volpe, 401 U.S. 402, 416 (1971) (Overton). "The court is not
empowered to substitute its judgment for that of the agency." Ibid.
As Judge Silberman recognized, the court of appeals' approach would "implicitly
assert[] a greater role for a reviewing court than is justified." Pet.
App. 96a. See Baltimore Gas & Elec. Co. v. NRDC, 462 U.S. 87, 103 (1983)
("When examining this kind of scientific determination, as opposed
to simple findings of fact, a reviewing court must generally be at its most
deferential.").21
Moreover, the court of appeals' demand for a determinate criterion to govern
EPA's NAAQS decisions is difficult to reconcile in practice with the Act's
command that EPA set NAAQS-and revise them, as appropriate, every five years-based
on the "latest scientific knowledge." 42 U.S.C. 7408(b). As the
D.C. Circuit has recognized in the past, Congress has directed EPA to make
"predictions * * * at the frontiers of science." NRDC, 902 F.2d
at 968 (quoting New York v. EPA, 852 F.2d 574, 580 (D.C. Cir. 1988), cert.
denied, 489 U.S. 1065 (1989)); accord Lead Indus., 647 F.2d at 1147. Because
"the statute is 'precautionary' in nature, the evidence 'uncertain
or conflicting' and the 'regulations designed to protect the public health,'"
the court of appeals has recognized that Congress did "not demand rigorous
step-by-step proof of cause and effect." NRDC, 902 F.2d at 968 (citations
omitted).
The purpose of Section 109's requirement that NAAQS provide an "adequate
margin of safety" is to ensure "a reasonable degree of protection
* * * against hazards which research has not yet identified." Lead
Indus., 647 F.2d at 1150 (quoting S. Rep. 1196, at 10). EPA must therefore
be able to draw conclusions from "suspected, but not completely substantiated,
relationships between facts, from trends among facts, from theoretical projections
from imperfect data, from probative preliminary data not yet certifiable
as 'fact,' and the like." NRDC, 902 F.2d at 968 (quoting Ethyl Corp.
v. EPA, 541 F.2d 1, 28 (D.C. Cir.) (en banc), cert. denied, 426 U.S. 941
(1976)); H.R. Rep. 294, at 43-51, 110-112. To hold EPA to the court's novel
demand for precision would restrict the agency's ability to act on a precautionary
basis in the face of scientific uncertainties, thereby potentially eroding
the public health protection Congress intended NAAQS to afford.
The court of appeals' requirement that EPA develop a "determinate criterion
for drawing lines" (Pet. App. 6a), which EPA would presumably be required
to apply in every NAAQS proceeding (see id. at 73a), is also inconsistent
with EPA's own expert assessment of the flexibility necessary to apply Section
109's mandate to all the pollutants for which EPA must develop standards.
In the PM and ozone rulemaking proceedings, EPA received comments arguing
that the Act required the agency to adopt various specific approaches to
decisions under Section 109, such as, for example, first determining a "safe
level" and then applying a margin of safety. 62 Fed. Reg. at 38,688,
38,883. In its response to those comments, EPA noted that the D.C. Circuit
had specifically rejected claims that any of the approaches suggested by
the commenters were required by the Act and instead had ruled that "[t]his
court must allow [the Administrator] the discretion to determine which approach
will best fulfill the goals of the Act." Ibid. (quoting Lead Indus.,
647 F.2d at 1161-1162).
The criteria pollutants that are subject to the NAAQS process vary widely
in relation to key factors, including their health effects, the types of
available scientific evidence, the kind and degree of scientific uncertainties,
and the size of sensitive populations. Because of that wide variation:
[T]he most appropriate approach to establishing a NAAQS with an adequate
margin of safety may be different for each standard under review. Thus,
no generalized paradigm * * * can substitute for the Administrator's careful
and reasoned assessment of all relevant health factors in reaching such
a judgment.
62 Fed. Reg. at 38,688; see id. at 38,883.22
At bottom, the court's rationale for its approach-to prevent arbitrary agency
action and to enhance judicial review (Pet. App. 14a)-overlooks that Congress
is entitled to set the parameters for judicial oversight of EPA's scientific
judgments. Congress has concluded that EPA's actions in setting NAAQS are
subject to the arbitrary or capricious test. See 42 U.S.C. 7607(d)(9). EPA
must consider the factors that the Act prescribes and provide a reasoned
explanation, based on scientific evidence, for its decision. When reviewing
that decision, a court is not entitled to demand that EPA demonstrate that
the numerical standard the agency selected was the sole possible choice.
To the contrary, as this Court explained in reviewing rates set by the Federal
Power Commission under a statute requiring rates to be "just and reasonable":
[T]here is no single cost-recovering rate, but a zone of reasonableness:
"Statutory reasonableness is an abstract quality represented by an
area rather than a pinpoint. It allows a substantial spread between what
is unreasonable because too low and what is unreasonable because too high."
FPC v. Conway Corp., 426 U.S. 271, 278 (1976) (quoting Montana-Dakota Util.
Co. v. Northwestern Pub. Serv. Co., 341 U.S. 246, 251 (1951)).
This Court's decisions in Conway and similar cases do not announce novel
concepts. The D.C. Circuit has itself acknowledged, when it reviewed the
1987 PM standard, that a reviewing court should not ask if EPA has identified
"the clear and sole appropriate standard," but rather whether
EPA has selected a standard that is reasonable in light of the record evidence.
NRDC, 902 F.2d at 972. The court of appeals here relied on the nondelegation
doctrine as its sole justification for departing from that established standard
of review. Pet. App. 12a-13a. Under this Court's precedents, Section 109
does not violate the nondelegation doctrine. The court of appeals improperly
relied on that doctrine to depart from traditional principles governing
the scope of judicial review of agency action.
C. EPA Has Recognized Limitations On Its Discretion To Revise The Particulate
Matter And Ozone Standards
The court of appeals' nondelegation holding rests on the erroneous conception
that EPA interprets Section 109 to set no limits on its discretion. The
court characterized EPA as claiming discretion so broad as to leave it free
to "pick any point between zero and a hair below * * * London's Killer
Fog." Pet. App. 13a. To the contrary, EPA has recognized and applied
principles that channel its discretion far more narrowly than the court
acknowledged.
The CAA's directive that EPA must base the revised NAAQS on "air quality
criteria" reflecting the "latest scientific knowledge" limits,
at the outset, the alternatives that EPA can consider. EPA found that a
wide range of adverse health effects were occurring at concentrations below
the pre-existing PM and ozone NAAQS, which effectively dictated an upper
bound for any revised NAAQS. The revised PM and ozone NAAQS had to be at
least as protective as those pre-existing standards. See, e.g., 62 Fed.
Reg. at 38,656-38,657, 38,665; id. at 38,859; 61 Fed. Reg. at 65,719-65,721;
pp. 10-13, supra. In each case, EPA also identified a lower bound for consideration
at the most protective levels the scientific evidence reasonably supported.
For PM, the lower bound was the lowest level at which long-term epidemiological
data indicated there might be an "effects threshold" below which
there is no risk of health effects. See PM App. 2145, 2147. For ozone, which
appears to have no effects threshold (see note 23, infra), the lower bound-0.07
ppm-was the level at which EPA's exposure assessment showed that exposures
of public health concern were "essentially zero." 61 Fed. Reg.
at 65,728, 65,730.
EPA's review of the latest scientific knowledge on the health effects of
PM confined the agency to considering a quite limited range of 12.5 to 20
µg/m3 for the annual PM2.5 standard (and 20 to 65 µg/m3 for
the daily PM2.5 standard). See 62 Fed. Reg. at 38,675-38,677; PM App. 2158
(Staff Paper). That range is obviously far more narrow than a range from
zero to a "hair below" 2,500 µg/m3 (the level the court
of appeals assumed for the "Killer Fog"). Similarly, EPA's review
of the latest scientific knowledge on the health effects of ozone confined
the agency to considering an eight-hour ozone standard between 0.07 ppm
and 0.09 ppm. See p. 13, supra. EPA had identified those ranges in its Staff
Papers, and CASAC had agreed that EPA's identification of those ranges had
sound scientific support. See PM App. 3162; Ozone App. 238; pp. 8-9, supra.
Furthermore, although EPA may exercise discretion in selecting a standard,
EPA is constrained in doing so by the CAA's explicit requirement that the
agency consider relevant factors, apply them to relevant facts, respond
to criticisms, and adequately explain its rationale. 42 U.S.C. 7607(d)(2)-(6).
In fulfilling those obligations, EPA employed the decisional criteria that
the agency has long used to ensure consistency in its NAAQS decisions. See
p. 5, supra.
For example, in setting the annual PM2.5 standards, EPA took account of
the "types of health evidence" and the "kind and degree of
uncertainties." EPA identified a scientific criterion applicable to
epidemiological studies-statistical significance to the 95% confidence level-to
determine "how much uncertainty [was] too much" within the narrow
range under consideration. See Pet. App. 10a; 62 Fed. Reg. at 38,675-38,676;
61 Fed. Reg. at 65,642 n.8; see note 10, supra. The scientific evidence
showed statistically significant positive associations between PM2.5 and
adverse health effects in locations where PM2.5 ranged from 15.7 to 21 µg/m3.
See pp. 10-11, supra. But no study showed a statistically significant association
between adverse health effects and PM2.5 in any area with an annual PM2.5
level below 15.7 µg/m3. See 62 Fed. Reg. at 38,676; PM App. 3506-3521.
EPA therefore set the annual PM2.5 standard at 15 µg/m3, which EPA
determined would be requisite to protect public health with an adequate
margin of safety.
In the ozone rule, EPA selected the standard based primarily on consideration
of "the nature and severity of the health effects," "the
size of the sensitive population at risk," and, again, the "types
of health evidence." EPA recognized that a standard of 0.09 ppm would
not protect public health with an adequate margin of safety. See pp. 13-14,
supra. EPA also recognized that its mandate is not to set standards more
stringent than requisite to protect against health effects of public health
significance. EPA identified important and meaningful differences in the
character of the scientific evidence regarding risks-including the estimated
frequency and duration of adverse health effects-associated with levels
above and below 0.08 ppm. Those differences amply justified the Administrator's
selection of the 0.08 ppm level as requisite to protect public health with
an adequate margin of safety. E.g., 62 Fed. Reg. at 38,864-38,868; 61 Fed.
Reg. at 65,727, 65,730; see also pp. 13-15, supra.23
The record accordingly demonstrates that EPA did not exercise unfettered
discretion in promulgating the revised PM and ozone standards. To the contrary,
EPA explained in detail, with reference to the scientific evidence in the
record, why it selected the challenged PM and ozone standards. The court
of appeals thus failed to appreciate the record before it in erroneously
concluding that EPA claimed such wide discretion that it could have set
the new standards at virtually any level. Cf. Overton, 401 U.S. at 416.
II. THE COURT OF APPEALS LACKED JURISDICTION TO REVIEW EPA'S PREAMBLE STATEMENTS
ON THE SCOPE OF ITS AUTHORITY TO IMPLEMENT A REVISED OZONE STANDARD
Section 307(b)(1) of the CAA authorizes the D.C. Circuit to review "action
of the Administrator in promulgating any [NAAQS]" and other "nationally
applicable regulations promulgated, or final action taken, by the Administrator."
42 U.S.C. 7607(b)(1). In this case, the court of appeals plainly had jurisdiction
to review EPA's promulgation of the ozone NAAQS. The NAAQS, which consists
of a specific, two-paragraph rule, Pet. App. 104a, is final agency action.
The court of appeals erred, however, in concluding that it also had authority
to critique portions of EPA's explanatory preamble and thereby dictate the
course of the agency's future implementation actions. The court of appeals'
broad pronouncement that "EPA can enforce a revised primary ozone NAAQS
only in conformity with Subpart 2," Pet. App. 81a, results from that
court's premature and unfocused exploration of issues that were not properly
before that court.
EPA's rulemaking addressed promulgation of a revised ozone NAAQS. The issue
of implementation arose in the ozone case because participants in the rulemaking
proceeding argued that, when Congress enacted the 1990 Amendments and included-in
Section 181(a)(1) of Subpart 2-a scheme for implementing the then-current
one-hour ozone standard, Congress thereby implicitly prohibited EPA from
ever promulgating a revised ozone standard. See p. 15, supra. Section 307(d)(6)
of the CAA requires EPA to respond to "significant comments."
42 U.S.C. 7607(d)(6). EPA accordingly addressed those arguments in the rulemaking
preamble and, later, in its brief in the court of appeals. EPA explained
generally, as part of its demonstration why the Section 181(a) scheme does
not prevent EPA from promulgating a revised NAAQS, that the revised standard
could be implemented through Subpart 1. See App., infra, 1a-6a; 62 Fed.
Reg. at 38,884-38,885.24
The court of appeals was obligated to address the specific arguments that
the rulemaking participants had raised in their judicial challenge to EPA's
promulgation of a revised ozone NAAQS. See 42 U.S.C. 7607(d)(7)(B). The
only issue involving "implementation" before the court of appeals,
however, was whether the participants were correct that the Section 181(a)
scheme precluded EPA from promulgating the revised standard. Once the court
answered that question in the negative, Pet. App. 34a-37a, its task was
done. It should not have gone on to consider prematurely whether and how
EPA could implement the revised NAAQS.
The government objected, through petitions for rehearing and rehearing en
banc, to the court of appeals' decision to address an issue that was not
properly before it. The court responded by asserting that it had jurisdiction
to address the views that EPA expressed in the preamble because those explanatory
statements about the agency's future intentions independently satisfied
the final agency action requirement of Section 307(b) of the CAA. Pet. App.
77a-78a. That conclusion is wrong.
A. EPA's Preamble Statements Regarding Implementation Authority Are Not
"Agency Action" Within The Meaning Of Section 307(b)(1) Of The
Act
The court of appeals has undertaken to address prospectively how to reconcile
two complex portions of the CAA- Subparts 1 and 2 of Part D-even though
EPA has not yet undertaken that task through rulemaking. The court justified
its review on the basis that EPA stated, in an explanatory preamble, how
it intends to reconcile those provisions. See 62 Fed. Reg. at 38,884-38,885
(App., infra, 1a-6a). Section 307(b)(1), however, limits the court of appeals
to review of particular agency actions, such as "promulgating any *
* * [NAAQS]" and other "final action * * * taken[] by the Administrator."
42 U.S.C. 7607(b)(1).
The CAA does not define the phrase "action * * * taken[] by the Administrator,"
but its meaning can be discerned from conventional principles of administrative
law. Cf. Harrison v. PPG Indus., Inc., 446 U.S. 578, 586 (1980). The Administrative
Procedure Act (APA) defines the term "agency action" as "the
whole or a part of an agency rule, order, license, sanction, relief, or
the equivalent or denial thereof, or failure to act." 5 U.S.C. 551(13);
see 5 U.S.C. 701(b)(2). As this Court has indicated, the phrase "agency
action" is limited to discrete acts that affect legal rights. See Lujan
v. National Wildlife Fed'n, 497 U.S. 871, 891 (1990) ("Under the terms
of the APA, respondent must direct its attack against some particular 'agency
action' that causes it harm."); FTC v. Standard Oil Co., 449 U.S. 232,
247 (1980) ("In general, the term encompasses formal orders, rules,
and interpretive decisions that crystallize or modify private rights.")
(Stevens, J., concurring).
The CAA also draws a clear distinction between agency action and the agency's
explanation of its action. For example, a promulgated rule-a familiar form
of agency action-must be "accompanied" by "a statement of
basis and purpose" and "a response to each of the significant
[public] comments [on the proposed rule]." 42 U.S.C. 7607(d)(6). That
requirement facilitates judicial review of whether the agency's rule is
"arbitrary, capricious, or an abuse of discretion," 42 U.S.C.
7607(d)(9). A court is entitled to set aside the rule if it concludes that
the agency's rationale for the rule is inadequate. But in that situation,
the court invalidates the rule itself -viz., the agency's action-and not
the agency's explanation for its action. See ibid.; see also 5 U.S.C. 706(2).
The agency's explanation is not itself "agency action" that is
independently subject to review. Cf. California v. Rooney, 483 U.S. 307,
311 (1987) (per curiam) ("This Court 'reviews judgments, not statements
in opinions.'") (quoting Black v. Cutter Labs., 351 U.S 292, 297 (1956));
Herb v. Pitcairn, 324 U.S. 117, 126 (1945) ("our power is to correct
wrong judgments, not to revise opinions").
In this case, EPA's "action" is promulgation of the revised ozone
NAAQS, which consists of a discrete rule. See Pet. App. 104a. The rule itself
makes clear that the preamble sets out the "reasons" for the rule.
Ibid. The related preamble statements at issue here (see App., infra, 1a-6a)
could properly be considered by the court of appeals only as they relate
to the agency action in question-promulgation of the revised ozone NAAQS.
Those statements do not themselves constitute "agency action."
If they did, then virtually any regulatory preamble that endeavors to explain
the basis for an agency's action would arguably spawn additional agency
actions that are each potentially subject to judicial review and revision.
Congress surely did not authorize courts to engage in that sort of broad
and limitless anticipatory oversight of CAA programs. See Standard Oil,
449 U.S. at 247-249 (Stevens, J., concurring).
B. EPA's Preamble Statements Do Not Constitute "Final" Agency
Action
Even if EPA's preamble statements constituted "agency action,"
they do not constitute "final" agency action. In Bennett v. Spear,
520 U.S. 154 (1997), this Court identified two conditions that must be satisfied
for agency action to be "final": (1) it "must mark the 'consummation'
of the agency's decisionmaking process"; and (2) it "must be one
by which 'rights or obligations have been determined,' or from which 'legal
consequences will flow.'" Id. at 177-178. EPA's discussion of the Act's
implementation provisions in the preamble does not satisfy either of those
requirements.
The court of appeals improperly reconfigured the "consummation"
prong by focusing solely on whether the plans that EPA described in the
preamble appeared tentative or likely to change. See Pet. App. 77a-78a.
Under Bennett, however, the proper inquiry is not merely whether the agency
has any present intention to alter its position. Rather, the question is
whether the agency has consummated its decisionmaking process. The answer
necessarily depends upon what steps the governing statute requires.25
When EPA's preamble statements are considered in light of the CAA's implementation
program, it is clear that they do not constitute final agency action. EPA
completed the statutory process for reviewing the existing ozone standard,
42 U.S.C. 7408(a), 7409(d), and reached a final decision promulgating the
eight-hour ozone standard. EPA thus consummated its decisionmaking process
and took final agency action in promulgating the NAAQS. 42 U.S.C. 7607(b)(1).
EPA, however, has hardly begun and has not yet completed any step in the
CAA's distinct process for implementing the revised ozone NAAQS, which requires
additional rulemaking procedures.26
The CAA provides EPA up to three years after promulgating a revised NAAQS
to designate all areas within the Nation as attainment, nonattainment, or
unclassifiable for that standard. 42 U.S.C. 7407(d)(1).27 At the same time,
for nonattainment areas, EPA must establish schedules for States to submit
state implementation plans. 42 U.S.C. 7502(b). EPA may establish classifications
for nonattainment areas and must establish their attainment dates. 42 U.S.C.
7502(a); see also 42 U.S.C. 7511(a)(1). States develop, for EPA approval
or disapproval, their SIPs to implement the NAAQS by the applicable attainment
dates. See 42 U.S.C. 7410(a) and (k), 7502(c). Under that statutory structure,
NAAQS implementation proceeds through a careful decisionmaking process that
includes designation, setting dates for SIP submissions, classifying nonattainment
areas, developing SIPs, setting attainment dates, and obtaining EPA's approval
of the SIPs. EPA's expression of its views, in a regulatory preamble, on
some aspects of that future process cannot reasonably be viewed as completing
any of the discrete steps that make up that process.
EPA did not take action in the rule under review to designate, classify,
or set attainment dates for any areas, to set schedules for SIP submissions,
or to approve or disapprove any SIP. Thus, EPA's preamble statements do
not mark the consummation of any part of the agency's implementation process.
They do not conclude the agency's thinking on how it may implement the revised
ozone standard, or precisely whether or how implementation of the revised
eight-hour standard may be affected by any Subpart 2 provisions. EPA's deliberations
on those matters are ongoing and have not yet resulted in final agency action
that is ripe for judicial review.
The preamble statements also do not satisfy the second Bennett requirement
that "the action must be one by which 'rights or obligations have been
determined,' or from which 'legal consequences will flow.'" 520 U.S.
at 178. The court of appeals concluded that EPA's preamble statements respecting
future implementation were final action because by "promulgating a
revised ozone NAAQS the EPA has triggered the provisions of §§
107(d)(1) and 172, which impose a number of requirements upon the states
* * * [and] those areas that do not comply will ultimately be required to
do so." Pet. App. 78a. Any obligations triggered by promulgation of
the NAAQS arise, however, regardless of what EPA said, or did not say, in
the preamble about implementation. No legal consequences flow from the preamble
statements themselves. EPA's views on implementation will produce tangible
legal consequences only when EPA takes actual steps to implement the NAAQS
through the prescribed rulemaking processes. Affected parties will be able
to obtain judicial review of EPA's judgments on implementation once EPA
takes final action that actually creates new legal obligations.
C. EPA's Preamble Statements Regarding Implementation Of The Eight-Hour
Ozone Standard Are Not Ripe For Review
Even if EPA's preamble statements were final agency action, that purported
agency action would not be ripe for judicial review. The ripeness doctrine
serves "to prevent the courts, through avoidance of premature adjudication,
from entangling themselves in abstract disagreements over administrative
policies, and also to protect the agencies from judicial interference until
an administrative decision has been formalized and its effects felt in a
concrete way by the challenging parties." Ohio Forestry Ass'n v. Sierra
Club, 523 U.S. 726, 732-733 (1998) (quoting Abbott Labs., 387 U.S. at 148-149).
The ripeness doctrine "is drawn both from Article III limitations on
judicial power and from prudential reasons for refusing to exercise jurisdiction."
Reno v. Catholic Soc. Servs., Inc., 509 U.S. 43, 57 n.18 (1993). To determine
whether a controversy is ripe a court must "evaluate both the fitness
of the issues for judicial decision and the hardship to the parties of withholding
court consideration." Texas v. United States, 523 U.S. 296, 301 (1998).
"A claim is not ripe for adjudication if it rests upon 'contingent
future events that may not occur as anticipated, or indeed may not occur
at all.'" Id. at 300.
The court of appeals' concerns regarding how to reconcile Subparts 1 and
2 are not yet fit for review because, at this stage, the matter is too abstract,
as demonstrated by the breadth and generality of the court's conclusion.
EPA has neither fully developed its interpretation nor attempted to exercise
its authority to implement the eight-hour ozone standard. See, e.g., Ohio
Forestry, 523 U.S. at 732-738; Abbott Labs., 387 U.S. at 148-149.
The interplay among Sections 107(d), 172, and 181, and other relevant provisions
of the Act, is complex. As we have explained, EPA expressed views on selected
implementation provisions of the Act to respond to comments in the ozone
rulemaking that those provisions negate EPA's NAAQS revision authority.
A court's consideration of whether and how Section 181(a) and other sections
of Subpart 2 may affect EPA's authority under the various provisions of
Subpart 1 would be on much surer footing if the reviewing court had the
benefit of EPA's full explanation of how and why it has implemented the
revised ozone standard in a particular way, after the completion of a relevant
decisional process (including any required public notice and comment) that
actually implements the standard.28
The case for deferring review is especially strong here because the resolution
of any tension between the various provisions in Subparts 1 and 2 may depend
upon the circumstances of the particular nonattainment area at issue. See,
e.g., Pet. App. 40a-41a (expressing concern regarding the interplay and
future application of Sections 172(a) and 181(a)(1) on Los Angeles). Deferring
review of those implementation issues would allow EPA the opportunity to
work through the various implementation provisions in concrete settings,
reconcile conflicts, make policy judgments, and apply its expertise as necessary
to resolve ambiguities in the statute. See Ohio Forestry, 523 U.S. at 733-734;
Chevron U.S.A. Inc. v. NRDC, 467 U.S. 837, 842-845 (1984).
Judicial intervention at this point would also "den[y] the agency an
opportunity to correct its own mistakes and to apply its expertise."
Standard Oil, 449 U.S. at 242. Deferring review would facilitate future
judicial review by reducing the issues to manageable proportions. The importance
of a concrete setting for judicial review is underscored by the court's
own confusion regarding EPA's interpretation, compare Pet. App. 43a-44a,
with id. at 80a-81a and id. at 87a-88a, its reliance upon predicted future
outcomes in particular areas, id. at 40a-41a, and the extreme breadth and
lack of clarity of the court's ultimate conclusion that "EPA can enforce
a revised primary ozone NAAQS only in conformity with Subpart 2," id.
at 81a.
Finally, deferring review will not work substantial hardship. EPA's expression
of its views in the preamble created no obligations that adversely affect
any parties' day-to-day operations, and the parties will have ample opportunity
to bring their legal challenge when any harm is more immediate and certain.
See Lujan, 497 U.S. at 891; Ohio Forestry, 523 U.S. at 733-734; Toilet Goods
Ass'n v. Gardner, 387 U.S. 158, 164 (1967).
III. THE COURT OF APPEALS IMPROPERLY RESTRICTED EPA'S AUTHORITY TO IMPLEMENT
THE REVISED OZONE STANDARD
If this Court were to reach the merits of the court of appeals' decision
respecting implementation, it should reverse that decision. The court of
appeals correctly upheld EPA's authority to revise the ozone NAAQS, and
it correctly concluded that the CAA requires EPA to designate all areas
of the Nation as attainment, nonattainment, or unclassifiable areas for
the revised standard. Pet. App. 34a-37a. The court erred, however, in concluding
that EPA could not enforce a more protective ozone standard in those designated
areas. See id. at 37a-44a. On rehearing, the court modified its views and
concluded that "EPA can enforce a revised primary ozone NAAQS only
in conformity with Subpart 2." Id. at 81a. Judge Tatel explained in
his partial concurrence that the panel's revised decision allows EPA to
enforce its revised ozone standard under Subpart 1 in an area only after
that area attains the one-hour standard under Subpart 2. Id. at 89a (Tatel,
J., concurring). But even under that view, the court of appeals' decision
is incorrect.
As we explain below, EPA reasonably interprets the CAA to require that EPA
implement a revised ozone standard under Subpart 1. The revised NAAQS is
a National Ambient Air Quality Standard that should apply throughout the
entire Nation, for all members of the public, including those that reside
in areas that do not currently attain the one-hour standard. There is no
warrant for categorically requiring that EPA ensure compliance with the very one-hour ozone standard
that it found inadequate to protect public health before it can require
efforts to attain the more protective revised ozone NAAQS.
A. The Clean Air Act Authorizes EPA To Implement The Revised Ozone NAAQS
Under Subpart 1 Of Part D
Title I of the CAA, 42 U.S.C. 7401-7515 (1994 & Supp. III 1997), governs
the promulgation and implementation of
all NAAQS, and it directs that the NAAQS be attained
"as expeditiously as practicable." 42 U.S.C. 7502(a)(2), 7511(a)(1).
Part A expressly requires EPA to reconsider and, if appropriate, revise
the NAAQS-including the pre-existing one-hour ozone standard-every five
years. 42 U.S.C. 7409(d)(1); Pet. App. 34a. Subpart 1 of Part D, which governs
implementation for "Nonattainment Areas in General," sets out
specific provisions for implementing revised NAAQS. 42 U.S.C. 7502(a)(1).
It follows that EPA's revised ozone NAAQS would be subject to implementation
under Subpart 1. The court of appeals' counter-intuitive conclusion -that
the revised ozone NAAQS must be implemented in conformity with Subpart 2,
which addresses the former ozone NAAQS-conflicts at the outset with the
basic framework of the Act.
Subpart 1's specific language reveals that the court's construction is wrong.
Section 172(a) establishes classifications and attainment dates for all
areas designated nonattainment "pursuant to section [107(d)] with respect
to any * * * revised standard, including a revision of any standard in effect
on November 15, 1990." 42 U.S.C. 7502(a)(1)(A). Section 172(a)(1)(A)'s
reference to "any" revised standard includes a revision of the
one-hour ozone standard, because that standard was "in effect on November
15, 1990." See 40 C.F.R. 50.9 (1990). Thus, Section 172(a), on its
face, makes clear that Subpart 1 governs the selection of classifications
and attainment dates for a revised ozone NAAQS.
The court of appeals questioned that interpretation because Sections 172(a)(1)(C)
and 172(a)(2)(D) provide that EPA's classification and attainment date-setting
authority under Section 172(a) does not apply to "nonattainment areas
for which classifications [or "attainment dates"] are specifically
provided under other provisions of [Part D]." 42 U.S.C. 7502(a)(1)(C)
and (a)(2)(D). See Pet. App. 37a. The court of appeals noted that Section
181(a)(1), in Subpart 2 of Part D, provides that "each area designated
nonattainment for ozone pursuant to [Section 107(d)]" is to be classified
and given an attainment date under its Table 1. 42 U.S.C. 7511(a)(1). See
Pet. App. 38a. In the court's view, Section 181(a)(1) dictates that all
areas that are designated as nonattainment for ozone under Section 107(d),
including areas designated under the revised ozone NAAQS, are subject to
Subpart 2's provisions. Id. at 38a-39a. Congress, however, adequately answered
the court's concern over those seemingly competing references.
Section 181(a)-which is contained in Subpart 2 of Part D-"specifically
provide[s]" classifications and attainment dates for only a particular
subset of ozone "nonattainment areas." Section 181(a)'s caption
states that the Section provides "Classification and attainment dates
for 1989 nonattainment areas." 42 U.S.C. 7511(a) (emphasis added).
The 1989 nonattainment areas are, of course, the areas that were subject
to the one-hour ozone standard then in force. Congress enacted Subpart 2
out of concern over the continuing nonattainment of the one-hour ozone standard
that existed when it enacted the 1990 Amendments. It plainly crafted Section
181(a)(1) to address that specific problem. The title of Section 181(a)
clarifies that Section's reach and resolves any confusion about whether
Subpart 2 governs implementation of the revised ozone NAAQS. See INS v.
National Ctr. for Immigrants' Rights, Inc., 502 U.S. 183, 189 (1991); Mead
Corp. v. Tilley, 490 U.S. 714, 723 (1989); FTC v. Mandel Bros., 359 U.S.
385, 388-389 (1959).
The court of appeals' contrary conclusion would lead to unworkable and absurd
results. For example, Section 181(a)(1) sets attainment dates and classifications
based on an area's "design value," which is an air quality measure
that specifically applies to the one-hour ozone standard that was in existence
in 1990. See 42 U.S.C. 7511(a)(1).29 It would make no sense-and, indeed,
would be impossible-to classify areas and set their attainment dates for
the revised NAAQS's eight-hour standard using an air quality measurement
based upon one-hour averaging. The eight-hour NAAQS rests on an entirely
different averaging methodology, statistical form, and concentration. See
40 C.F.R. 50.10 & Pt. 50 App. I, ¶¶ 2-3.
In addition, Section 181(a) calculates attainment dates for areas based
upon a fixed number of years from 1990. See 42 U.S.C. 7511(a)(1) (Table
1). Section 181(a)(1) makes reference to 1990 because it establishes attainment
dates for the "1989 nonattainment areas," which had not attained
the one-hour ozone standard at the time of enactment of the 1990 Amendments.
That timetable makes no sense in calculating attainment dates for a revised
NAAQS. Indeed, many of Section 181(a)(1)'s attainment dates, including those
for "marginal," "moderate," and "serious"
nonattainment areas, have already passed. See 42 U.S.C. 7511(a) (Table 1).30
In light of those considerations, Section 181(a)(1) cannot reasonably be
construed to have "specifically provided" classifications and
attainment dates for the eight-hour ozone standard. Rather, the text and
context of Section 181(a) indicate that Congress intended Section 181(a)(1)
to provide classifications and attainment dates only for "1989 nonattainment
areas" that had been designated under the then-current one-hour ozone
standard. See 42 U.S.C. 7407(d)(1)(C) and (4)(A). EPA's view that Congress
intended EPA to implement the revised NAAQS under Subpart 1 and to implement
the former NAAQS under Subpart 2 represents, at a minimum, a permissible
and reasonable accommodation of the provisions entrusted to the agency's
care. See, e.g., Chevron, 467 U.S. at 842-845.
B. Delaying Implementation Of The Revised NAAQS Until The Previous Standard
Is Attained Conflicts With The Clean Air Act's Requirement That All NAAQS
Be Attained "As Expeditiously As Practicable"
The court of appeals also erred in its apparent conclusion that EPA cannot
implement the revised ozone NAAQS in an area until that area has had an
opportunity to meet the attainment dates for the one-hour ozone standard.
See Pet. App. 89a. The court overlooked that the attainment dates set out
in Section 181(a)(1) establish the maximum period of time allowed for attainment.
See 42 U.S.C. 7511(a)(1). Both Subpart 1 and Subpart 2 require that all
areas attain the NAAQS "as expeditiously as practicable." CAA
§§ 172(a)(2), 181(a)(1), 42 U.S.C. 7502(a)(2), 7511(a)(1); see
H.R. Rep. No. 490, 101st Cong., 2d Sess. Pt. at 1, at 229; S. Rep. No. 228,
101st Cong., 1st Sess. 37 (1989). EPA accordingly is justified in concluding
that it should implement the revised ozone standard without delay throughout
the Nation in accordance with the timing provisions set out in Subpart 1.
42 U.S.C. 7502(a)(2).
The court of appeals expressed concern that a practical conflict could conceivably
arise for the Los Angeles area between Subpart 1's deadline to attain the
revised ozone standard and Subpart 2's attainment date for the one-hour
ozone standard. See Pet. App. 41a. It is entirely reasonable, however, for
Congress to require that, once EPA determines that a revised NAAQS is necessary
to protect public health, the revised NAAQS should be attained without avoidable
delay notwithstanding the timetable that Congress envisioned for the standard
then in effect.31
Moreover, the court of appeals has overstated the practical problem that
the revised NAAQS would pose. As we have noted, the deadlines for attainment
in Section 181(a)(1) are only outer time limits for attaining the one-hour
standard. See 42 U.S.C. 7511(a)(1). Los Angeles would be required to attain
the revised NAAQS under Subpart 1 no later than the same year that marks
the outer time limit for attaining Subpart 2's one-hour ozone standard.
Compare CAA § 172(a)(2), 42 U.S.C. 7502(a)(2), with CAA § 181(a)(1)
and (5), 42 U.S.C. 7511(a)(1) and (5). That situation, however, does not
necessarily pose any practical problems. For example, it may be "practicable"-and
preferable from an implementing State's perspective-to achieve both the
one-hour ozone standard and the revised ozone standard at approximately
the same time. There is no reason to believe that Congress intended to preclude
that approach.
In any event, the question of how to reconcile any competing compliance
deadlines is clearly the type of issue that should first be addressed by
EPA through future final action under the implementation process, including
any required public notice and opportunity for comment. EPA's determinations
can then be subject to judicial review in the appropriate court of appeals.
See 42 U.S.C. 7607(b)(1). To the extent that there is tension between Subparts
1 and 2, it will be up to EPA to harmonize the applicable provisions, and
the courts must defer to EPA's reasonable judgment on the matter. Chevron,
467 U.S. at 845. Those issues, however, are properly reserved for another
day. Regardless of how those provisions may ultimately be applied, they
certainly do not justify the court of appeals' conclusion that Congress
prohibited EPA from implementing the revised ozone standard in an area until
it attains the very standard that EPA found was not adequate to protect
public health.
CONCLUSION
The judgment of the court of appeals should be reversed and the case remanded
for further proceedings.
Respectfully submitted.
SETH P. WAXMAN
Solicitor General
LOIS J. SCHIFFER
Assistant Attorney General
LAWRENCE G. WALLACE
Deputy Solicitor General
JEFFREY P. MINEAR
Assistant to the Solicitor
General
DAVID J. KAPLAN
MARY F. EDGAR
Attorneys
GARY S. GUZY
General Counsel
GERALD K. GLEASON
MICHAEL L. GOO
JAN M. TIERNEY
KEVIN W. MCLEAN
Attorneys
Environmental Protection
Agency
JULY 2000
1 See NAAQS for Particulate Matter, 62 Fed.
Reg. 38,652 (1997); NAAQS for Ozone, 62 Fed. Reg. 38,856 (1997). Copies
of the Federal Register notices have been lodged with the Clerk of the Court.
2 Congress first addressed the problem of air pollution through the Air
Pollution Control Act of 1955, ch. 360, 69 Stat. 322, which authorized the
Secretary of Health, Education, and Welfare (HEW) to conduct research activities.
Congress later expanded HEW's authority to include, among other things,
compiling and publishing air quality criteria based on scientific studies,
Clean Air Act of 1963, Pub. L. No. 88-206, §1, 77 Stat. 392, 395. Congress
later directed States to develop regionally based ambient air quality standards
and provided mechanisms for enforcement, Air Quality Act of 1967, Pub. L.
No. 90-148, § 108(c), 81 Stat. 492-494. Congress substantially revised
that program through the Clean Air Act Amendments of 1970, Pub. L. No. 91-604,
84 Stat. 1679, which provided for national ambient air quality standards
and for state implementation. See § 107(a), 84 Stat. 1679-1683. Congress
continued to build on that program through the Clean Air Act Amendments
of 1977, Pub. L. No. 95-95, 91 Stat. 685, and the Clean Air Act Amendments
of 1990, Pub. L. No. 101-549, 104 Stat. 2399. See text at p. 6, infra, and
note 5, infra.
3 We have provided a set of the Criteria Documents and Staff Papers for
PM and ozone to the Clerk of the Court.
4 See, e.g., 59 Fed. Reg. 38,906-38,907 (1994) (carbon monoxide NAAQS);
52 Fed. Reg. 24,634-24,635 (1987) (PM NAAQS); 50 Fed. Reg. 25,532 (1985)
(nitrogen dioxide NAAQS).
5 The Clean Air Amendments of 1970 introduced the NAAQS concept and required
States to attain each NAAQS "as expeditiously as practicable but *
* * in no case later than three years" after EPA approves a SIP. 42
U.S.C. 1857c-5(a)(2)(A)(i) (1970). The Clean Air Act Amendments of 1977
added a new outside attainment date (1982, or 1987 if extended, 42 U.S.C.
7502(a) and (c) (1982)), and introduced the concept of designating areas
"nonattainment" for each NAAQS. 42 U.S.C. 7407(d) (1982). The
1977 Amendments also introduced a new "Part D," which contained
additional attainment provisions for all NAAQS that apply to all nonattainment
areas. See 42 U.S.C. 7501-7508 (1982) (Pt. D, Tit. I).
6 The dates must be set so that attainment is achieved as "as expeditiously
as practicable," with outside dates that may range up to 10 years from
the date an area is designated nonattainment, with two one-year extensions
possible. 42 U.S.C. 7502(a)(2)(A) and (C).
7 Subparts 3-5 contain additional provisions that address the continued
nonattainment of the other existing standards. 42 U.S.C. 7512-7512a (1994
& Supp. III 1997); 42 U.S.C. 7513-7513b, 7514-7514a.
8 Table 1 of Section 181(a)(1) establishes specific classifications for
nonattainment areas under the one-hour ozone standard based upon the area's
"design value," which refers to the measurement methodology then
in use. See note 29, infra. Table 1 also sets a corresponding attainment
date for each classification, expressed as either 3, 6, 9, 15, or 20 years
"after November 15, 1990," when the 1990 Amendments were enacted.
42 U.S.C. 7511(a)(1).
9 Generally, fine particles are by-products of combustion or the reaction
and transformation of gases. PM App. 519, 1786. Coarse particles generally
are the result of abrasion of material into smaller pieces, which are then
suspended in the air by wind or human activity. Id. at 519, 1787. PM10 denotes
particulate matter up to about 10 micrometers (µm) in diameter, which
is the fraction of PM that can be inhaled into the human lungs. 62 Fed.
Reg. at 38,654 n.1, 38,666-38,667. PM2.5 denotes particles up to about 2.5
µm in diameter. Id. at 38,654 n.5.
10 Epidemiological studies examine patterns of disease in real-world human
populations. Epidemiologists look for statistical associations that may
reflect cause-and-effect relationships, using the concept of statistical
significance to separate those associations from results that may be the
product of chance. See Modern Epidemiology 184 (K.J. Rothman & S. Greenland
eds., 2d ed. 1998).
11 EPA adopted a 24-hour PM2.5 NAAQS of 65 µg/m3 to "supplement"
the protection afforded by the annual PM2.5 standard. 62 Fed. Reg. at 38,677.
The Administrator also determined that secondary PM2.5 standards identical
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