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

REPLY BRIEF FOR THE PETITIONERS 

GARY S. GUZY 

General Counsel 
Environmental Protection 

Agency 
Washington, D.C. 20460 
SETH P. WAXMAN 

Solicitor General 

Counsel of Record 
Department of Justice 
Washington, D.C. 20530-0001 
(202) 514–2217 

TABLE OF CONTENTS 

Page 

I. The court of appeals erroneously applied the non- 
delegation doctrine ............................................................... 
1 

A. Section 109 of the Clean Air Act is constitu- 
tional under the Court’s established nondelega- 
tion jurisprudence ......................................................... 
2 

B. There is no warrant for the Court to amend 

Section 109 ...................................................................... 

7 

C. There is no need for this Court to revise its 
nondelegation jurisprudence ...................................... 
9 

II. The court of appeals lacked jurisdiction to review 

EPA’s preamble statements .............................................. 

11 

III. If the Court reaches the question, it should rule 

that EPA may simultaneously implement the one- 
hour and eight-hour standards .......................................... 

15 

TABLE OF AUTHORITIES 

Cases: 

A.L.A. Schechter Poultry Corp. v. United States, 
295 U.S. 495 (1935) ................................................................ 

3, 4 
Almendarez-Torres v. United States, 523 U.S. 
224 (1998) ................................................................................. 
8 

American Lung Ass’n v. EPA, 134 F.3d 388 
(D.C. Cir. 1998) ....................................................................... 
8 

American Paper Inst. v. American Elec. Power 

Serv. Corp., 461 U.S. 402 (1983) ......................................... 

16 

American Petroleum Inst. v. Costle, 665 F.2d 1176 
(D.C. Cir. 1981), cert. denied, 455 U.S. 1034 
(1982) ........................................................................................ 8 

American Power & Light Co. v. SEC, 329 U.S. 90 
(1946) ........................................................................................ 5 

American Textile Mfrs. Inst. v. Donovan, 452 U.S. 
490 (1981) ................................................................................. 9 

(I) 

II 

Cases—Continued: Page 

American Trucking Ass’ns v. EPA, 175 F.3d 1027 
(D.C. Cir. 1999) ....................................................................... 
7 

Carter v. Carter Coal Co., 298 U.S. 238 (1936) ................ 
4 

Chevron U.S.A. Inc. v. NRDC, 467 U.S. 837 
(1984) .................................................................................. 
4-5, 17 

Lead Indus. Ass’n v. EPA, 647 F.2d 1130 
(D.C. Cir.), cert. denied, 449 U.S. 1042 (1980) .................. 
7 

Lichter v. United States, 334 U.S. 742 (1948) .................... 
5 

Loving v. United States, 517 U.S. 748 (1996) .................... 
4, 10 

Mistretta v. United States, 488 U.S. 361 (1989) ............... 
2, 3, 

4, 5, 10 

NRDC v. EPA: 
824 F.2d 1146 (D.C. Cir. 1987) ............................................. 
8 
902 F.2d 962 (D.C. Cir. 1990), cert. dismissed, 498 U.S. 
1075, cert. denied, 498 U.S. 1082 (1991) ......................... 
8 

Opp Cotton Mills, Inc. v. Administrator, 312 U.S. 
126 (1941) ................................................................................. 
2, 3 

Panama Refining Co. v. Ryan, 293 U.S. 388 
(1935) ........................................................................................ 4 

Sunshine Anthracite Coal Co. v. Adkins, 310 U.S. 
381 (1940) ................................................................................. 

5 

Vermont Yankee Nuclear Power Corp. v. NRDC, 
435 U.S. 519 (1978) ................................................................ 
5 

Yakus v. United States, 321 U.S. 414 (1944) ..................... 
2, 3 

Statutes and regulations: 

Clean Air Act, 42 U.S.C. 7401 et seq. ........................ 

6, 8, 10, 11, 

14, 15, 18, 19, 20 

Tit. I, 42 U.S.C. 7401 et seq.: 
§ 107(d), 42 U.S.C. 7407(d) ........................................... 
16 
§ 107(d)(1)(A), 42 U.S.C. 7407(d)(1)(A) ......................... 
19 

§ 107(d)(1)(A)(i), 42 U.S.C. 7407(d)(1)(A)(i) ................. 
16 

§ 107(d)(1)(A)(iii), 42 U.S.C. 7407(d)(1)(A)(iii) ............. 
16 

§ 107(d)(1)(B), 42 U.S.C. 7407(d)(1)(B) ...................... 
16, 19 

§ 108, 42 U.S.C. 7408 (1994 & Supp. IV 1998) .............. 
8 

§ 109, 42 U.S.C. 7409 ............................. 1-2, 3, 4, 7, 8, 9, 10 

III 

Statutes and regulations—Continued: 
Page 

§ 109(b)(1), 42 U.S.C. 7409(b)(1) ..................................... 
2 

§ 109(b)(2), 42 U.S.C. 7409(b)(2) ..................................... 
2 

§ 109(d), 42 U.S.C. 7409(d) ............................................... 
15 

§ 109(d)(1), 42 U.S.C. 7409(d)(1) ..................................... 
15 

§§ 171-179, 42 U.S.C. 7501 et seq. (Subpt. 1) ............ 
16, 17, 

18, 19, 20 
§ 172, 42 U.S.C. 7502 ......................................................... 

16 

§ 172(a), 42 U.S.C. 7502(a) ........................................... 
18, 19 

§ 172(a)(1), 42 U.S.C. 7502(a)(1) ..................................... 
16 

§ 172(a)(1)(A), 42 U.S.C. 7502(a)(1)(A) ...................... 
18, 19 

§ 172(a)(1)(C), 42 U.S.C. 7502(a)(1)(C) .......................... 
18 

§ 172(a)(2), 42 U.S.C. 7502(a)(2) ................................. 
16, 20 

§ 172(a)(2)(A), 42 U.S.C. 7502(a)(2)(A) .......................... 
18 

§ 172(a)(2)(D), 42 U.S.C. 7502(a)(2)(D) .......................... 
18 

§ 172(c), 42 U.S.C. 7502(c) ............................................... 
16 

§§ 181-185B, 42 U.S.C. 7511 et seq. (Subpt. 2) ......... 
11, 12 

16, 17, 18, 19, 20 
§ 181(a), 42 U.S.C. 7511(a) ..................................... 

16, 18, 19 

§ 181(a)(1), 42 U.S.C. 7511(a)(1) ................................. 
18, 19 

Tit. III, 42 U.S.C. 7601 et seq.: 
§ 307(d)(9), 42 U.S.C. 7607(d)(9) ..................................... 
6, 8 

§ 307(d)(9)(A), 42 U.S.C. 7607(d)(9)(A) ......................... 
6 

Clean Air Act Amendments of 1990, Pub. L. No. 101-549, 
§ 103, 104 Stat. 2423, 42 U.S.C. 7511-7511f ....................... 
16 

40 C.F.R.: 

Section 50.9(b) .................................................................... 

13, 14 

Section 50.10 ........................................................................... 
14 

Miscellaneous: 

EPA, The Benefits and Costs of the Clean Air Act: 
1970 to 1990 (Oct. 1997) ........................................................ 

11 
EPA, The Benefits and Costs of the Clean Air Act, 
1990-2010: Report to Congress (Nov. 1999) ..................... 
11 

62 Fed. Reg. (1997): 
pp. 38,655-38,679 .................................................................. 
6 

pp. 38,859-38,874 .................................................................. 
6 

p. 39,873 ................................................................................. 17 

IV 

Miscellaneous—Continued: Page 

pp. 38,884-38,885 .............................................................. 
12, 15 

p. 38,885 ............................................................................... 17 

H.R. Rep. No. 490, 101st Cong., 2d Sess. Pt. 1 (1990) ........ 

16 

A. Scalia, Responsibilities of Regulatory Agencies 

Under Environmental Laws, 24 Hous. L. Rev. 97 
(1987) ........................................................................................ 8 

R. Stern et al., Supreme Court Practice (7th ed. 
1993) ..................................................................................... 10, 12 

REPLY BRIEF FOR THE PETITIONERS 

In our opening brief, we explain that the court of appeals: 
(I) erroneously applied the nondelegation doctrine (Pet. Br. 
21-34); (II) lacked jurisdiction to review EPA’s preamble 
statements on the scope of its authority to implement a 
revised ozone NAAQS (id. at 34-44); and (III) improperly 
restricted EPA’s authority to implement the revised ozone 
NAAQS (id. at 44-56). In response, American Trucking 
Associations (ATA) and its supporters rewrite the questions 
presented, disregard controlling precedent, and ask for 
affirmance on alternative, but unpersuasive, rationales. We 
reply by reference to the three core questions that our 
petition places before this Court.1 

I. The Court Of Appeals Erroneously Applied The 
Nondelegation Doctrine 

Industry respondents and their amici offer three incon- 
sistent defenses of the court of appeals’ judgment: (A) APC 
argues that the Court should affirm the court of appeals’ 
nondelegation ruling on the ground that EPA has not 
articulated an “intelligible principle” in setting NAAQS 
(APC Br. 22-35); (B) ATA argues that the Court can avoid 
the nondelegation issue by reinterpreting Section 109 of the 

1 We employ the following abbreviations: Brief for Massachusetts et 
al. (Mass. Br.); Brief for American Lung Ass’n (ALA Br.); Brief for 
American Trucking Ass’ns et al. (ATA Br.); Brief for Appalachian Power 
Co. et al. (APC Br.); Brief for Ohio et al. (Ohio Br.); Amici Brief for 
California et al. (Calif. Br.); Amici Brief for New York et al. (N.Y. Br.); 
Amici Brief for Clean Air Trust et al. (CAT Br.), Amicus Brief for United 
States Public Interest Research Group (USPIRG Br.); Amicus Brief for 
General Electric Co. (GE Br.); Amici Brief for American Institute of 
Certified Public Accountants, et al. (AICPA Br.); Amici Brief for Intel 
Corp. et al. (Intel Br.); Amici Brief for Senator Orrin Hatch et al. (Hatch 
Br.); Amici Brief for Gary E. Marchant et al. (Marchant Br.); Amici Brief 
for Institute for Justice et al. (IFJ Br.); Amici Brief for the Manufacturers 
Alliance/MAPI, Inc. et al. (Mfrs. Br.); Amici Brief for Pacific Legal 
Foundation et al. (PLF Br.); Amici Brief for the Lincoln Institute for 
Research and Education et al. (LI Br.). 

(1) 

2 

Clean Air Act (CAA) to require EPA to consider compliance 
costs in setting NAAQS (ATA Br. 7-25); and (C) diverse 
amici argue that the Court should revise the nondelegation 
doctrine to curtail government regulation of all sorts (see, 

e.g., AICPA Br. 4-5; IFJ Br. 11-13; LI Br. 27-30). Only the 
first theory defends the court of appeals’ reasoning, and none 
of the theories finds support in this Court’s decisions.2 
A. Section 109 of the CAA is constitutional under this 
Court’s established nondelegation jurisprudence. The initial 
issue before this Court is whether Section 109 of the CAA 
violates the nondelegation doctrine. This Court has articu- 
lated and reaffirmed the basic rule: 

“The Constitution has never been regarded as denying to 
the Congress the necessary resources of flexibility and 
practicality, which will enable it to perform its function.” 
Panama Refining Co. v. Ryan, 293 U.S. 388, 421 (1935). 
Accordingly, this Court has deemed it “constitutionally 
sufficient if Congress clearly delineates the general pol- 
icy, the public agency which is to apply it, and the 
boundaries of this delegated authority.” American 
Power & Light Co. v. SEC, 329 U.S. 90, 105 (1946). 

Mistretta v. United States, 488 U.S. 361, 372-373 (1989); ac- 
cord, e.g., Yakus v. United States, 321 U.S. 414, 424-425 
(1944); Opp Cotton Mills, Inc. v. Administrator, 312 U.S. 
126, 144-146 (1941). See Pet. Br. 21-22; Mass. Br. 28-29; ALA 
Br. 17-18. 

The Court’s oft-repeated statement resolves the nondele- 
gation issue here. Section 109 of the CAA states that EPA 
shall set NAAQS at levels that are “requisite” to protect 
“public health” and “public welfare.” 42 U.S.C. 7409(b)(1) 
and (2). Thus, Congress has clearly delineated “the general 

2 The States of Ohio, Michigan, and West Virginia and a group of 
electronics industry amici make no attempt to defend the court of appeals’ 
nondelegation ruling. See Ohio Br. 10; Intel Br. 25. 

3 

policy” and “the public agency which is to apply it.” Mis- 
tretta, 488 U.S. at 373. In addition, Congress has set out, in 
extraordinary detail, “the boundaries of this delegated 
authority” (ibid.) by specifying the factors that EPA must 
consider, a body of experts that it must consult, and a rigor- 
ous set of procedures that EPA must follow in setting the 
NAAQS. See Pet. Br. 23-26; see also Mass. Br. 29-35.3 

Accordingly, Section 109, by its plain terms, amply satis- 
fies nondelegation requirements. Congress has fulfilled its 
legislative function by making the fundamental policy choice 
to set NAAQS at a level requisite to protect public health 
and public welfare.4 Congress has properly assigned to EPA 
the executive responsibility to determine, based on current 
scientific knowledge and extensive public input, the specific 
numerical values.5 There is, accordingly, no sound basis for 
asserting that Section 109 is unconstitutional under this 
Court’s established nondelegation jurisprudence.6 

3 The nondelegation doctrine does not prevent Congress from direct- 
ing an agency to make scientific inquiries and to exercise judgment in the 
face of scientific uncertainty. See, e.g., Yakus, 321 U.S. at 425 (“It is no 
objection that the determination of facts and the inferences to be drawn 
from them in the light of the statutory standards and declaration of policy 
call for the exercise of judgment, and for the formulation of subsidiary 
administrative policy within the prescribed statutory framework.”); 
accord Opp Cotton Mills, 312 U.S. at 146. 

4 See, e.g., Opp Cotton Mills, 312 U.S. at 144 (“The adoption of the 
declared policy of Congress and its definition of the circumstances in 
which its command is to be effective, constitute the performance, in the 
constitutional sense, of the legislative function.”). 

5 See, e.g., Yakus, 321 U.S. at 424 (The Constitution “does not require 
that Congress find for itself every fact upon which it desires to base 
legislative action or that it make for itself detailed determinations which it 
has declared to be prerequisite to the application of the legislative policy 
to particular facts and circumstances impossible for Congress itself 
properly to investigate.”). 

6 Several amici (e.g., PLF Br. 5-6; GE Br. 6-7) argue that this case is 
similar to the only two cases in which the Court has invalidated federal 
legislation on nondelegation grounds. See A.L.A. Schechter Poultry Corp. 

v. United States, 295 U.S. 495 (1935) (fair competition provisions of the 

4 

APC attempts to avoid the clear import of this Court’s 
decisions by asserting that the nondelegation doctrine im- 
poses constitutional constraints on agency action. Relying 
on the court of appeals’ reasoning, APC argues that EPA’s 
construction of Section 109 violates a “weak” form of the 
nondelegation doctrine because EPA has not announced an 
“intelligible principle” to “guide its exercise of public health 
risk management judgment.” APC Br. 22-23. APC’s argu- 
ment makes a muddle of this Court’s nondelegation deci- 
sions. The question in a nondelegation challenge is whether 
Congress has conferred legislative power. Thus, the Court 
has stated that Congress must set out an “intelligible princi- 
ple” in legislation to ensure that Congress does not delegate 
legislative power. See, e.g., Loving v. United States, 517 
U.S. 748, 771 (1996). APC’s assertion that EPA must articu- 
late an “intelligible principle” when promulgating NAAQS 
borrows the Court’s words, but places them in a context that 
distorts their meaning.7 

National Industrial Recovery Act (NIRA)); Panama Refining, supra 
(“hot oil” provisions of the NIRA). Those comparisons are preposterous. 
In Schechter, Congress had delegated rulemaking power to private par- 
ties. See Schechter, 295 U.S. at 537. See also Carter v. Carter Coal Co., 
298 U.S. 238, 311 (1936) (invalidating provisions of the Bituminous Coal 
Conservation Act on similar substantive due process grounds). And in 
both Schechter and Panama Refining, “Congress had failed to articulate 
any policy or standard that would serve to confine the discretion of the 
authorities to whom Congress had delegated power.” Mistretta, 488 U.S. 
at 373 n.7 (emphasis added). See Schechter, 295 U.S. at 541; Panama 
Refining, 293 U.S. at 415. Section 109 possesses none of those characteris- 
tics and, indeed, illustrates the very type of legislative authorization the 
Court considered permissible. See Schechter, 295 U.S. at 530 (Congress 
may “perform its function in laying down policies and establishing 
standards, while leaving to selected instrumentalities the making of 
subordinate rules within prescribed limits and the determination of facts 
to which the policy as declared by the Legislature is to apply.”); accord 

Panama Refining, 293 U.S. at 421. 

7 If APC disagrees with EPA’s construction of Section 109, then it 
may articulate that issue as a nonconstitutional challenge to an agency’s 
interpretation. See Chevron U.S.A. Inc. v. NRDC, 467 U.S. 837, 842-845 

5 

The Court has never suggested that the Constitution 
requires an agency to announce an “intelligible principle” as 
a precondition for implementing the underlying statute. To 
the contrary, the Court has repeatedly emphasized that, so 
long as Congress has set out an intelligible principle, the 
agency is entitled to exercise discretion in carrying out the 
congressional program.8 In exercising that discretion, the 
agency may describe the governing principles at the outset, 
or it may make its determinations on a case-by-case basis.9 
If Congress has not mandated a precise course for the 
agency, then the agency has discretion in determining how 
to effectuate congressional intent. See Chevron, 467 U.S. at 
843. The courts play an important role in ensuring that the 
agency ultimately complies with statutory directives, see, 

e.g., American Power & Light, 329 U.S. at 105, but the courts 
carry out that role by applying the congressionally pre- 
scribed standards for judicial review of agency action, see, 

e.g., id. at 108-112. See Pet. Br. 26-31. 

(1984). But APC cannot rationally contend that EPA has itself violated 
the nondelegation doctrine. 

8 See, e.g., Mistretta, 488 U.S. at 378 (“our cases do not at all suggest 
that delegations of this type may not carry with them the need to exercise 
judgment on matters of policy”); Lichter v. United States, 334 U.S. 742, 
785 (1948) (“It is not necessary that Congress supply administrative 
officials with a specific formula for their guidance in a field where flexibil- 
ity and the adaptation of the congressional policy to infinitely variable con- 
ditions constitute the essence of the program.”); accord American Power 
& Light, 329 U.S. at 105; Sunshine Anthracite Coal Co. v. Adkins, 310 
U.S. 381, 398 (1940). 

9 See American Power & Light, 329 U.S. at 106 (“Nor is there any 
constitutional requirement that the legislative standards be translated [by 
the agency] into formal and detailed rules of thumb prior to their applica- 
tion to a particular case. If [the] agency wishes to proceed by the more 
flexible case-by-case method, the Constitution poses no obstacle. All that 
can be required is that the [agency] conform to the statutory language and 
policy.”); cf. Vermont Yankee Nuclear Power Corp. v. NRDC, 435 U.S. 
519, 543-545 (1978). 

6 

At bottom, APC’s objection to EPA’s actions in this case 
has nothing to do with separation-of-powers principles. 
Rather, APC disputes EPA’s methodology for setting 
NAAQS and its specific judgments in selecting the levels for 
the revised ozone and PM NAAQS. See APC Br. 24-33. 
Congress has directed, however, that those questions should 
be resolved under the CAA’s standards for judicial review. 
See CAA § 307(d)(9), 42 U.S.C. 7607(d)(9). The court of 
appeals failed to resolve those questions under the 
prescribed statutory standard. That standard requires the 
court to examine the whole record—which includes EPA’s 
full rationale and the scientific evidence on which it relies— 
to decide whether EPA’s actions are “arbitrary, capricious, 
an abuse of discretion, or otherwise not in accordance with 
law.” 42 U.S.C. 7607(d)(9)(A). APC’s arguments do not 
address—and certainly provide no basis for excusing—the 
court of appeals’ fundamental error. See Pet. Br. 30-31. 

10 

10 In making their nondelegation claims, the industry respondents 
distort many specific aspects of EPA’s regulatory decision and the record 
below. Those mischaracterizations are irrelevant to the nondelegation 
issue, and we do not dwell on them here. We trust that, if the court of 
appeals conducts a careful review of the agency’s actions on remand in 
accordance with the CAA’s requirements, see 42 U.S.C. 7607(d)(9), it will 
discern that EPA revised the NAAQS based on a comprehensive and 
reasoned analysis of the significance and reliability of new scientific 
knowledge about the health and welfare effects of the pollutants at issue. 
See, e.g., 62 Fed. Reg. 38,655-38,679 (1997) (rationale for the revised PM 
primary NAAQS); id. at 38,859-38,874 (rationale for the revised primary 
ozone NAAQS); see also PM and Ozone Staff Papers and Criteria 
Documents (lodged with the Clerk of the Court). Contrary to the industry 
respondents’ repeated claims (e.g., ATA Br. 11; APC Br. 24), EPA has 
never claimed boundless discretion to set NAAQS. See, e.g., Pet. Br. 28-29 
& n.22, 31-34. 

The comments of some of supposedly disinterested amici warrant brief 
mention. The Marchant amici and two members of Congress assert that 
EPA engages in a “science charade” in which the agency improperly 
purports to set NAAQS based on science alone, without regard to policy 
considerations. See Marchant Br. 3-4, 9; Hatch Br. 1. Those amici simply 
ignore the rulemaking record. For example, EPA prepared a detailed 

7 

B. There is no warrant for the Court to amend Section 
109. ATA makes little effort to defend the court of appeals’ 
reasoning. Rather, ATA argues that the court of appeals has 
consistently erred, beginning with its decision in Lead Ind- 
ustries Ass’n v. EPA, 647 F.2d 1130, 1148 (D.C. Cir.), cert. 
denied, 449 U.S. 1042 (1980), in holding that Section 109 
requires EPA to set NAAQS without regard to compliance 
costs. ATA Br. 7. ATA asserts that “the nondelegation 
problem that produced the decision below is readily resolved 
by rejecting Lead Industries and allowing the Administrator 
to formulate new ozone and PM NAAQS constrained only by 
the requirement that she overtly and systematically consider 
all logically relevant factors in setting those standards.” Id. 

at 11. ATA’s position has three basic flaws. 

First and foremost, despite ATA’s rhetoric to the contrary 
(see, e.g., ATA Br. 1-2), there is simply no merit to ATA’s 
construction of Section 109. The statutory text, its historical 
origins, its underlying policy, and Congress’s repeated reaf- 
firmations conclusively establish that Congress has directed 
EPA to establish NAAQS based solely on consideration of 
the public health and public welfare effects caused by the 
presence of criteria pollutants in the ambient air. See, e.g., 
99-1426 Fed. Resp. Br. 17-31; 99-1426 Mass. Br. 15-28; 99- 
1426 ALA Br. 1-25, 29-32; 99-1426 Calif. Br. 5-30; 99-1426 
CAT Br. 5-29. EPA and the court of appeals have 
consistently adhered to that construction of Section 109— 

“Policy Assessment of Scientific and Technical Information” in each 
rulemaking “to evaluate the policy implications of the key studies and 
scientific information contained in [the Criteria Document]”). See PM 
Staff Paper, at I-1 (lodged with the Clerk); accord Ozone Staff Paper; see 
also Pet. Br. 4 (describing Staff Papers). Moreover, although Marchant 
portrays himself as a disinterested law professor (see Marchant Br. 19), he 
actually served as one of ATA’s primary counsel in the proceedings below. 
See ATA v. EPA, 175 F.3d 1027, 1031-1032 (D.C. Cir. 1999). The 
congressional amici acknowledge that their brief was funded by a private 
organization called “Citizens for a Sound Economy.” Hatch Br. 1 n.1. 

8 

and rejected industry’s shopworn arguments that NAAQS 
should take into account the compliance costs—because it is 
the only rational construction of the statutory text. 

11 

Second, this case does not present a “nondelegation prob- 
lem” (ATA Br. 11). Congress has satisfied the nondelegation 
doctrine by providing intelligible principles in the 
CAA—such as requiring that NAAQS be set, based on the 
Section 108 “criteria,” at levels “requisite” to protect public 
health and public welfare—that constrain EPA’s exercise of 
discretion. What ATA posits as “nondelegation problems” 
(id. at 15-21) are simply its disagreements with judgments 
that EPA has made in exercising its statutory discretion. 
ATA may raise such objections in the rulemaking process, 
and it may seek judicial review of EPA’s final rules on the 
basis of properly preserved objections under the CAA’s 
“arbitrary or capricious standard.” 42 U.S.C. 7607(d)(9). 
But ATA’s objections are not matters of constitutional 
character. Hence, even if Section 109’s plain language were 
ambiguous, there would be no need to adopt a narrowing 
construction to avoid confronting a nondelegation problem. 
See, e.g., Almendarez-Torres v. United States, 523 U.S. 224, 
237-239 (1998); see also 99-1426 Fed. Resp. Br. 47-48; 99-1426 
USPIRG Br. 5-12. 

Third, even if Section 109 were ambiguous and it legiti- 
mately presented “nondelegation problems,” ATA’s pro- 

11 See Pet. App. 19a-21a; American Lung Ass’n v. EPA, 134 F.3d 388, 
389 (D.C. Cir. 1998); NRDC v. EPA, 902 F.2d 962, 973 (D.C. Cir. 1990), 
cert. dismissed, 498 U.S. 1075, and cert. denied, 498 U.S. 1082 (1991); 
American Petroleum Inst. v. Costle, 665 F.2d 1176, 1185 (D.C. Cir. 1981), 
cert. denied, 455 U.S. 1034 (1982); see also NRDC v. EPA, 824 F.2d 1146, 
1158-1159 (D.C. Cir. 1987) (en banc) (Vinyl Chloride); A. Scalia, Respon- 
sibilities of Regulatory Agencies Under Environmental Laws, 24 Hous. L. 
Rev. 97, 102 (1987) (“national primary ambient air quality standards are to 
be established not in light of what is ‘feasible’ or ‘reasonable’ (a formula- 
tion that would enable counterbalancing costs to be offset against the 
benefit of clean air) but rather on the sole basis of what is ‘requisite to 
protect the public health’ ”). 

9 

posed construction would exacerbate, rather than amelio- 
rate, those problems. Lead Industries and subsequent cases 
hold that Congress made a policy choice to cabin EPA’s 
discretion by requiring the agency to set NAAQS on the 
basis of a specific body of information: the latest scientific 
knowledge on the public health and welfare effects caused by 
the presence of criteria pollutants in the ambient air. Under 
ATA’s construction, EPA’s Administrator would be 
“constrained only by the requirement that she overtly and 
systematically consider all logically relevant factors in 
setting those standards.” ATA Br. 11 (emphasis added). 
That construction broadens—rather than constrains—EPA’s 
discretion. See 99-1426 Fed. Resp. Br. 47-49. 

12 

C. There is no need for this Court to revise its nondele- 
gation jurisprudence. Amici representing diverse special 
interest groups, ranging from accountants to gun owners, 
argue that this Court should reformulate its nondelegation 
jurisprudence in various ways, ranging from subjecting Con- 
gress to a “clear statement” requirement (AICPA Br. 4) to 
ignoring its 20th century decisions altogether (LI Br. 27-30). 
Those amici implicitly acknowledge that Section 109, which 
has been in place for 30 years, could be invalidated only if the 

12 ATA might suggest that EPA’s discretion would be constrained if 
EPA were further required to make decisions on a strict cost-benefit 
basis, formally weighing all “logically relevant” costs against all “logically 
relevant” benefits. But that reasoning is flawed in two additional re- 
spects. First, as we explain in No. 99-1426, the process of quantifying the 
nationwide environmental costs and benefits of NAAQS is highly sub- 
jective and fraught with uncertainty. 99-1426 Fed. Resp. Br. 45-47. If 
EPA attempted to set NAAQS on the basis of a strict cost-benefit analy- 
sis, it would need to exercise additional discretion in identifying and 
monetizing projected costs and benefits. That process would simply 
create new and different controversies. Second, this Court should be 
particularly reluctant to direct an agency to engage in strict cost-benefit 
analysis in the absence of clear direction from Congress. “When Congress 
has intended that an agency engage in cost-benefit analysis, it has clearly 
indicated such intent on the face of the statute.” American Textile Mfrs. 

Inst. v. Donovan, 452 U.S. 490, 510 (1981). 

10 

Court radically altered nondelegation principles that have 
been in place for more than 60 years. See, e.g., Pet. App. 
59a-60a (Tatel, J., dissenting). 

13 

There is clearly no warrant for doing so, and particularly 
not here, where Congress has not only carefully specified 
EPA’s responsibilities, but has also carefully monitored 
EPA’s actions. 

14 As Massachusetts and New Jersey chroni- 
cle in their brief, Congress and the Executive Branch have 
engaged in a decades-long collaborative effort to protect the 
public from air pollution, and that collaboration has led 
to ongoing legislative refinements based on the federal and 
state experience in formulating and implementing the 
NAAQS. See Mass. Br. 7-19. The CAA illustrates how 
“[s]eparation-of-powers principles are vindicated, not dis- 
served, by measured cooperation between the two political 
branches of the Government, each contributing to a lawful 
objective through its own processes.” Loving, 517 U.S. at 
773. That cooperative effort has produced consistent 
improvements in air quality and, in turn, unquestioned 
public health and public welfare benefits. Judged even by 
the industry respondents’ preferred criterion—cost-benefit 
analysis—the program has been a tremendous success. See 

13 As Judge Tatel noted in dissent, the CAA’s grant of authority “is far 
more specific than the sweeping statutory delegations consistently upheld 
by the Supreme Court for more than 60 years.” Pet. App. 97a. See Lov- 
ing, 517 U.S. at 771 (noting that the Court has “upheld, without exception, 
delegations under standards phrased in sweeping terms”); Mistretta, 488 
U.S. at 373-374 (collecting a sampling of those cases); see also id. at 415- 
416 (Scalia, J., dissenting). As the amici rightly perceive, the Court cannot 
invalidate Section 109 without calling into question countless Acts of 
Congress. 

14 Indeed, to the extent that the amici urge altering the court of 
appeals’ remand order in a manner not presented by the questions on 
which this Court has granted review, the contentions are not properly 
before the Court. See R. Stern et al., Supreme Court Practice 363 (7th ed. 
1993); see also note 17, infra. 

11 

EPA, The Benefits and Costs of the Clean Air Act: 1970 to 
1990 (Oct. 1997). 

15 

II. The Court Of Appeals Lacked Jurisdiction To 
Review EPA’s Preamble Statements 

As we explain in our opening brief, the court of appeals 
erred in dictating how EPA should implement the ozone 
NAAQS before EPA has taken judicially reviewable agency 
action—including additional notice and comment rulemaking 
—to implement that NAAQS. Pet. Br. 34-44. The industry 
respondents and their supporters fail to provide a defensible 
justification for the court of appeals’ decision to address an 
issue that was not yet before it. Indeed, only Ohio and APC 
meaningfully attempt to defend the court’s jurisdictional 
decision, and their arguments highlight why the court of 
appeals erred. 

As Ohio acknowledges, several midwestern States and the 
industry parties argued below that EPA lacked statutory 
authority to revise the ozone NAAQS because future imple- 
mentation of a revised NAAQS would conflict with the 
CAA’s Subpart 2 scheme for implementing the existing 
NAAQS. See Ohio Br. 32-33. 

16 EPA had considered that 
argument and rejected it in the rulemaking. See Pet. Br. 

15 Although many benefits of the CAA cannot be quantified in mone- 
tary terms, EPA has estimated that the Act as a whole yielded approxi- 
mately 22 trillion dollars in quantifiable benefits between 1970 and 1990, 
compared to direct compliance costs of approximately 0.5 trillion dollars 
over the same period. See EPA, supra, at ES-8 (summarizing results); see 
also 99-1426 Mass. Br. 12-13. EPA expects that the CAA will continue to 
produce substantial public health and public welfare benefits in the next 
decade. See EPA, The Benefits and Costs of the Clean Air Act, 1990-2010: 

Report to Congress 61, 102 (Nov. 1999). 

16 Ohio expressly states that this case “is about EPA’s power to revise 
the ozone standard at all” and “that is precisely the issue presented and 
briefed before the court of appeals.” Ohio Br. 32-33. See also ATA Br. 45 
(“the true focus of the implementation debate in the Court of Appeals was 
squarely on the argument by parties to the ozone rulemaking that Subpart 
2 precludes any revision of the ozone NAAQS”). 

12 

App. 1a-6a (62 Fed. Reg. at 38,884-38,885). The court of 
appeals correctly affirmed EPA’s determination that it had 
“power to revise” the ozone NAAQS. Pet. App. 34a-37a. 
The court of appeals’ decision has therefore conclusively 
resolved that matter. See generally Pet. Br. 34-35.17 

We do not question that the court of appeals was entitled 
to resolve whether EPA had statutory authority to revise 
the ozone NAAQS. The problem here is that the court did 
not stop at that point, but went on to issue an advisory opin- 
ion on another important matter that would be the subject of 
future rulemaking—namely, how EPA should implement the 
revised ozone NAAQS in conjunction with the CAA’s 
Subpart 2 scheme for implementing the pre-existing 1-hour 
ozone NAAQS. See Pet. App. 37a-43a. The court of appeals 
directed that, when the time comes for EPA to issue rules 
governing implementation of the revised ozone NAAQS, 
“EPA must enforce any revised primary ozone NAAQS 
under Subpart 2 [of Title I of the CAA].” Id. at 43a. 

The federal parties objected to the court of appeals’ sua 
sponte ruling on that matter at the first opportunity by filing 
a petition for rehearing explaining that EPA had not yet 
taken any final agency action to implement the revised ozone 

17 In disregard of this Court’s procedures, Ohio has resurrected and 
extensively briefed that issue (as well as others) without filing a cross- 
petition for writ of certiorari. Ohio Br. 10-31. ATA and APC have also 
improperly suggested that this Court should reverse the court of appeals’ 
determination on the statutory basis that Ohio puts forward, even though 
they did not file a cross-petition on the issue. APC Br. 49-50; ATA Br. 25. 
A cross-petition is necessary because their argument does not provide an 
alternative ground for affirming any question presented in our petition. 
Instead, their argument would require the Court to alter the judgment 
below. If this Court accepted their contention that the CAA’s Subpart 2 
provisions implicitly prohibit revision of the ozone NAAQS, the Court 
would be required to invalidate the revised ozone NAAQS outright, rather 
than to remand the case to the agency to develop an “intelligible principle” 
for revising the ozone NAAQS. See R. Stern et al., supra, at 363 (under 
“established doctrine, * * * a party must cross-appeal or cross-petition if 
such party seeks to change the judgment below or any part thereof ”). 

13 

NAAQS. The court of appeals nevertheless justified its 
decision on the basis that EPA’s preamble statements 
describing why it had authority to revise the ozone NAAQS 
constituted final agency action for purposes of determining 
how EPA should implement the ozone NAAQS. Pet. App. 
77a-79a. As our opening brief explains, EPA’s preamble 
statements describing the possible content of future rules do 
not constitute final agency action that is ripe for review— 
they are not themselves agency actions that affect legal 
rights. See Pet. Br. 36-44. Ohio suggests no persuasive 
basis for treating EPA’s preamble statements as final 
agency action. Ohio simply treats the preamble statements 
as if they were themselves rules. See Ohio Br. 34-39. 

APC takes a similar approach. It argues that “EPA’s 
determination of its authority to revise the ozone NAAQS is 
final action.” APC Br. 36 (emphasis added). But the issue 
here is whether EPA has taken final action on how it will 
“[e]nforce” the revised ozone NAAQS. Pet. App. 37a (emp- 
hasis added). APC simply conflates what the court of ap- 
peals itself treated as two distinct questions, and then 
confuses the picture still further by mischaracterizing EPA’s 
actions in the ozone rulemaking. According to APC, EPA 
issued “a rule that simultaneously established a more 
stringent 8-hour ozone NAAQS and made a 1-hour ozone 
NAAQS and related Subpart 2 program automatically inap- 
plicable to an area once EPA determines that its air quality 
meets the 1-hour NAAQS. 40 C.F.R. 50.9(b) & 50.10.” APC 
Br. 37 (emphasis added). But as the citations following 
APC’s statement make clear, EPA issued two rules, and 
APC is improperly treating those two distinct rules as one. 
As we explain in our opening brief, EPA issued 40 C.F.R. 

50.9(b) to change the way that the existing 1-hour ozone 
NAAQS would be implemented in the future. Pet. Br. 39 

n.26. That rule is final agency action, but it does not 
implement the revised 8-hour ozone NAAQS. EPA issued a 

14 

separate rule promulgating the revised ozone NAAQS, 40 
C.F.R. 50.10. That rule is also final agency action, but it 
likewise does not implement the revised ozone NAAQS. 
Indeed, if this Court merely examines the text of the two 
rules, it will discern that neither rule specifies how EPA will 
enforce the revised ozone NAAQS. See Pet. Br. 39 n.26 (40 
C.F.R. 50.9(b)); Pet. App. 104a (40 C.F.R. 50.10). 

18 

The tortuous arguments that Ohio and the industry re- 
spondents make in defense of the court of appeals’ juris- 
dictional ruling underscore why courts should respect the 
basic procedural principles that govern judicial review of 
agency action. The CAA specifies a methodical, step-by-step 
approach to carry out the complex task of promulgating and 
implementing NAAQS. That approach provides opportuni- 
ties for public participation and judicial review at critical 
stages of the sequential decisionmaking process. See Pet. 
Br. 3-8; Mass. Br. 3-6. Each of those stages presents compli- 
cated scientific and legal questions that deserve careful con- 
sideration before proceeding to the next stage of the process. 
The court in this case leapfrogged over critical steps in the 
administrative process and prescribed the outcome for fu- 
ture administrative proceedings before the agency has itself 

18 As we note in our opening brief, no party in this case specifically 
challenged 40 C.F.R. 50.9(b), and the court of appeals did not review that 
rule. Even if a party had challenged 40 C.F.R. 50.9(b) and the challenge 
were successful, that could properly have resulted merely in invalidation 
of that rule. It would not have given the court license to prescribe how 
EPA should implement the revised ozone NAAQS, which remains a 
subject for future rulemaking. APC notes that an environmental group 
challenged 40 C.F.R. 50.9(b) after the time period for seeking review of 
that rule had run, and the government objected to that challenge on that 
basis. APC Br. 39-40. Contrary to APC’s implication, there is nothing in- 
consistent in the government’s objection. In that case, the environmental 
group had filed an untimely challenge to 40 C.F.R. 50.9(b), while in this 
case, the States and industry parties—which filed a timely challenge to 
the revised ozone NAAQS, 40 C.F.R. 50.10—did not challenge 40 C.F.R. 

50.9(b) before the court of appeals. 

15 

determined its course through final regulatory action that is 
ripe for review. The consequences are particularly serious in 
the case of the CAA, which creates a regulatory program of 
extraordinary scope and complexity. If a court intervenes 
prematurely, it improperly injects itself into a policymaking 
role and increases the likelihood that it will err. 

III. If The Court Reaches The Question, It Should 
Rule That EPA May Simultaneously Implement 
The One-Hour And Eight-Hour Standards 

If this Court decides to reach the question, it should reject 
the court of appeals’ limits on how EPA may enforce the 
revised ozone NAAQS. We reply by reference to the brief of 
the amici Intel et al., which provides a defense of the court of 
appeals’ decision on this point that, while mistaken, is more 
cogent than the others proffered in this case. As Intel points 
out (Intel Br. 3, 6), every party that addresses the issue 
agrees that the court of appeals’ initial ruling—that “EPA 
must enforce any revised primary ozone NAAQS under 
Subpart 2” (Pet. App. 43a)—is untenable and would produce 
“absurd results.” See also Pet. Br. 47-48. Intel posits two 
alternatives: “either the revised NAAQS cannot be imple- 
mented at all or implementation of the revised NAAQS must 
occur under Subpart 1.” Intel Br. 4, 11. 

The first alternative—which ATA and APC espouse (ATA 
Br. 25; APC Br. 49-50)—is illogical and precluded by those 
portions of the court of appeals’ judgment that the respon- 
dents have not challenged. The court of appeals correctly 
rejected industry’s argument that EPA lacks authority to 
revise the ozone NAAQS. Pet. App. 34a-37a. 

19 No party has 

19 Indeed, the court of appeals’ conclusion is compelled by the CAA’s 
plain language. As the court of appeals correctly explained (Pet. App. 
34a), Section 109(d) categorically requires EPA periodically to review and 
revise all of the NAAQS in light of new scientific information, and Section 
109(d) makes no exception for the ozone NAAQS. 42 U.S.C. 7409(d)(1). 
See generally 62 Fed. Reg. at 38,884-38,885 (reproduced at Pet. Br. App. 

16 

filed a cross-petition for writ of certiorari on that issue, see 
note 17, supra, and it is therefore beyond dispute that EPA 
not only has the power, but also the obligation, to revise the 
ozone NAAQS periodically in light of new scientific infor- 
mation. It is absurd to suggest that Congress would have 
required that EPA periodically undertake the elaborate pro- 
cess of reviewing and revising the ozone NAAQS, but at the 
same time prohibited EPA from implementing the revis- 
ions. 

20 Thus, the first alternative that Intel offers is 
foreclosed. 

1a-6a). The court of appeals also correctly concluded (Pet. App. 36a-37a)— 
although it did not need to reach the issue—that Section 107(d) authorizes 
EPA to designate areas as nonattainment for “revised [NAAQS].” 42 
U.S.C. 7407(d)(1)(B). ATA’s new argument (ATA Br. 39) that EPA must 
designate areas as “unclassifiable” for the revised ozone standard is not 
properly before the Court because ATA did not cross-petition on the issue 
and a ruling in favor of ATA would alter the court of appeals’ judgment. 
It is also plainly inconsistent with the definitions of “nonattainment” and 
“unclassifiable.” 42 U.S.C. 7407(d)(1)(A)(i) and (iii). 

20 See, e.g., American Paper Inst. v. American Elec. Power Serv. 
Corp., 461 U.S. 402, 421 (1983) (the Court will not “imput[e] to Congress a 
purpose to paralyze with one hand what it sought to promote with the 
other.”). ATA incorrectly argues, from a rewriting of legislative history, 
that Congress enacted the 1990 Clean Air Act Amendments—and 
specifically Subpart 2—to eliminate EPA’s authority to implement a 
revised ozone standard under Subpart 1. See e.g., ATA Br. 36-38. Con- 
trary to ATA’s premise, Subpart 1 does not consist of “ghettoized” pre- 
1990 provisions (ATA Br. 38). Section 172 of newly-created Subpart 1 
contains new attainment date and classification authority to implement 
revised standards, 42 U.S.C. 7502(a)(1) and (2), together with additional 
new authorities for implementing all NAAQS in all nonattainment areas. 
See, e.g., 42 U.S.C. 7502(c); H.R. Rep. No. 490, 101st Cong., 2d Sess. Pt. 1, 
at 223-224 (1990) (“revised section 172(c) establishes requirements for all 
nonattainment area plans, including those for ozone * * * nonattainment 
areas”) (emphasis added); see also Pet. Br. 7-8, 44-46. Congress added 
Subpart 2 to provide additional provisions, and a specific attainment date 
scheme in Section 181(a), for the limited purpose of addressing attainment 
of the then-existing ozone standards. See Pet. Br. 46-48; see also 42 
U.S.C. 7511-7511f (“Subpart 2—Additional Provisions for Ozone Non- 
attainment Areas”). 

17 

Intel properly focuses on the second alternative. Intel 
recognizes that EPA must implement the revised NAAQS 
under Subpart 1, and the only question, therefore, is how 
EPA should reconcile its responsibility to implement the 
revised ozone NAAQS under Subpart 1 with the statutory 
provisions of Subpart 2. The court of appeals’ revised 
opinion addresses the question opaquely, stating that “EPA 
can enforce a revised primary ozone NAAQS only in confor- 
mity with Subpart 2.” Pet. App. 81a. Intel urges, in accor- 
dance with Judge Tatel’s concurring opinion, that EPA can- 
not enforce the revised 8-hour ozone NAAQS under Subpart 
1 in the areas subject to Subpart 2 until those nonattainment 
areas have had the opportunity to attain the pre-existing 1- 
hour NAAQS in accordance with the timetable set out in 
Subpart 2. See Intel Br. 4, 11. That question, however, pre- 
sents a matter within EPA’s special expertise. See Chevron, 
467 U.S. at 844-845. EPA maintains that Congress intended 
the agency to implement and enforce the revised 8-hour 
ozone NAAQS on a nationwide basis in accordance with the 
statutory deadlines established under Subpart 1. In EPA’s 
view, those areas that remain subject to Subpart 2 because 
they have not attained the pre-existing 1-hour NAAQS must 
continue to work toward achieving that goal, but they must 
also work toward attaining the stricter 8-hour NAAQS in 
accordance with the statutory timetable and substantive 
programs for the revised NAAQS. 

21 

Intel argues that EPA should delay implementing the 
revised ozone NAAQS in the “1989 nonattainment areas” 
described in Subpart 2 because Congress enacted Subpart 2 
as “a detailed and comprehensive framework” for imple- 
menting the 1-hour ozone NAAQS that was then in exis- 

21 Despite the court of appeals’ confusion on the matter (e.g., Pet. App. 
79a-81a), EPA has consistently explained its preliminary view that the 
revised ozone NAAQS should be implemented in accordance with Subpart 

1. See 62 Fed. Reg. at 38,873, 38,885. 

18 

tence. Intel Br. 12-15. But Congress clearly did not intend 
that the 1-hour ozone NAAQS would be the final word in 
protecting the public from ozone hazards. Congress also 
directed EPA to revise the ozone NAAQS if new scientific 
information showed that the 1-hour standard did not ade- 
quately protect public health and public welfare. See note 
19, supra. Congress did not explicitly direct EPA to give the 
“1989 nonattainment areas” special treatment if EPA found 
it necessary to revise the ozone NAAQS, and a court should 
not lightly infer that Congress intended to exempt particular 
areas from a NAAQS that EPA has revised specifically to 
protect the public from harm. Contrary to Intel’s sugges- 
tions (Intel Br. 15), simultaneous implementation of the pre- 
existing 1-hour NAAQS and the revised 8-hour NAAQS 
would neither conflict with the CAA’s “[p]lain [l]anguage” 
nor “[n]ullify” Subpart 2. 

First, as our opening brief explains (Pet. Br. 45-46), there 
is no statutory basis for delaying implementation of the 
revised ozone NAAQS in Subpart 2 nonattainment areas. 
Section 172(a) of the CAA—within Subpart 1 of Part D— 
authorizes EPA to establish classifications and attainment 
dates for all areas designated as “nonattainment” for the re- 
vised NAAQS. See 42 U.S.C. 7502(a)(1)(A) and (2)(A). Sec- 
tion 172(a) does not apply to nonattainment areas for which 
classifications and attainment dates are “specifically pro- 
vided” under other provisions of the CAA. See 42 U.S.C. 
7502(a)(1)(C) and (2)(D). But no provisions of the CAA, 
other than Section 172(a), provide for classifications and 
attainment dates for areas designated as nonattainment 
under the revised ozone NAAQS. See Pet. Br. 47-48.22 EPA 

22 Intel correctly observes that “Section 181(a)(1), Table 1—within 
Subpart 2 of Part D—‘specifically provides’ classifications and attainment 
dates for areas that are not in attainment with the existing one-hour, 0.12 
ppm ozone standard.” Intel Br. 16-17. See 42 U.S.C. 7511(a)(1). Indeed, 
Section 181(a)’s caption—“Classification and attainment dates for 1989 
nonattainment areas”—makes that point clear. See Pet. Br. 46. But 

19 

has accordingly expressed the view that it should implement 
the revised ozone NAAQS under the implementation 
schedule that Section 172(a) sets out for “any revised stan- 
dard.” 42 U.S.C. 7502(a)(1)(A). 

Second, Intel errs in asserting that simultaneous imple- 
mentation of the pre-existing and revised ozone NAAQS 
would “so undermine the purposes of Subpart 2 as to render 
Subpart 2 a nullity.” Intel Br. 18. Three of Subpart 2’s five 
compliance deadlines have already passed, and only a small 
number of areas are entitled to additional time for com- 
pliance with the pre-existing 1-hour standard. See CAA 
§ 181(a)(1), 42 U.S.C. 7511(a)(1) (Table 1). Those areas, 
which have the most serious ozone nonattainment problems, 
will continue to have additional time to comply with the 1- 
hour standard. But there is no clear basis for inferring that, 
when Congress gave those areas of the country additional 
time to comply with that standard, it implicitly intended that 
EPA alter the statutory timetable set out in Subpart 1 for 
complying with a revised ozone NAAQS. The CAA creates 
national ambient air quality standards, and, in the absence 
of clear instruction from Congress, EPA can properly con- 
clude that Congress wished to extend the benefits of any 
revised ozone NAAQS to the Nation’s entire population— 
including persons residing in areas with the most serious 
ozone problems. Any intention by Congress to except cer- 
tain areas from the generally applicable attainment dead- 
lines is, at most, ambiguous. Subpart 2 certainly does not 

Section 181(a) does not provide classifications and attainment dates for 
areas designated nonattainment under the revised ozone NAAQS. See 
Pet. Br. 46; Mass. Br. 45-46. See also 42 U.S.C. 7407(d)(1)(A) and (B) 
(indicating that area designations are established by reference to parti- 
cular standards). Indeed, Section 181(a), which predated the revised 
ozone NAAQS by seven years, could not provide classifications and attain- 
ment dates for an ozone NAAQS that had not yet been promulgated. See 
Pet. Br. 47-48; see also Mass. Br. 46-47; ALA Br. 38-44. 

20 

categorically require EPA to delay implementation of the 
revised ozone NAAQS in any area. 

23 

Accordingly, if this Court concludes to reach the issue that 
the court of appeals addressed prematurely, then it should 
adhere to the timetable set out in Subpart 1 and to the 
CAA’s explicit policy that all NAAQS are to be attained “as 
expeditiously as practicable.” See CAA § 172(a)(2), 42 
U.S.C. 7502(a)(2). 

For the foregoing reasons and those stated in our opening 
brief, the judgment of the court of appeals should be re- 
versed. 

Respectfully submitted. 

GARY S. GUZY 

General Counsel 
Environmental Protection 

Agency 
SETH P. WAXMAN 

Solicitor General 

OCTOBER 2000 

23 Intel speculates that, if EPA implements the revised ozone NAAQS 
in the “1989 nonattainment areas,” that action would impose economic 
hardships on those areas. Intel Br. 19-24. But this Court is in no position 
to determine, on the record before it, whether those assertions are true or 
how much additional time particular areas might need to comply with the 
revised ozone NAAQS. Indeed, it is significant that most of the States 
that will face those supposed hardships, including New Jersey, California, 
Maryland, New York, and Pennsylvania, do not agree with Intel’s con- 
struction. See Mass. Br. 43-50; N.Y. Br. 14-21. Furthermore, Intel’s 
extra-record speculations on the question of hardship raise additional 
extra-record issues—for example, to what extent delaying implementation 
would subject sensitive populations, including children and asthmatics, to 
increased health risks. Intel’s extra-record arguments simply underscore 
our point that the court of appeals has prematurely addressed the 
question of how EPA should reconcile its duties under Subpart 1 and 
Subpart 2 before EPA has taken any final agency action that properly 
places the issue before a reviewing court.