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, ET AL. 

ON PETITION FOR A 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 AUTHORITIES 

Cases: Page 

Chevron U.S.A. Inc. v. Natural Resources Defense 

Council, Inc., 467 U.S. 837 (1984) ...................................... 

4 

Lead Indus. Ass’n v. EPA, 647 F.2d 1130 (D.C. Cir. 

1980) ......................................................................................... 5 

Statutes, regulations and rule: 

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

§ 109, 42 U.S.C. 7409 ............................................................ 

2, 3 

§§ 181-185B, 42 U.S.C.. 7511-7511f ..................................... 

6 

§ 307, 42 U.S.C. 7607 ............................................................ 

9 

§ 307(b), 42 U.S.C. 7607(b) .................................................. 

9 

40 C.F.R.: 

Section 50.7 ........................................................................... 

7 

Section 50.9 ........................................................................... 

8 

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

7, 8, 9 

Section 50.10 ......................................................................... 
7, 8, 9 

Fed. R. App. P. 35(a) ................................................................ 
2 

Miscellaneous: 

62 Fed. Reg. 38,856 (1997): 

p. 38,873 ................................................................................... 

8 

pp. 38,884-38,885 .................................................................... 
7 

64 Fed. Reg. 57,424 (1999) ....................................................... 8 

(I) 

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, ET AL. 

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

REPLY BRIEF FOR THE PETITIONERS 

The federal government’s petition for a writ of certiorari 
has prompted an extraordinary array of responses. The 
Commonwealth of Massachusetts and the State of New 
Jersey (which have filed their own joint petition, No. 99-1263 
(Mass. Pet.)) and the American Lung Association (which has 
filed its own petition, No. 99-1265 (ALA Pet.)) fully endorse 
the government’s petition. Likewise, the States of New 
York, Connecticut, Maryland, Maine, New Hampshire, Penn- 
sylvania, Rhode Island and Vermont, as amici curiae 
(Eastern States Am. Br.), unqualifiedly support review. The 
State of Ohio does not oppose review of the nondelegation 
issue, while the States of Michigan and West Virginia sup- 
port review to the extent urged by the American Trucking 
Associations, et al. (Midwest States Br. 3). The American 
Trucking Associations, et al., which consists of a group of 

(1) 

2 

industrial interests, says that “[a] properly reformulated 
version of the Government’s first question is worthy of re- 
view” (ATA Br. 1; see also Mfrs. Alliance Am. Br. 17). 
Appalachian Power Co., et. al. (APC) and the National Stone 
Association, et al. (NSA), which represent other industrial 
interests, and the Mercatus Center, an academic organi- 
zation, oppose review. 

As these wide-ranging responses suggest, the court of 
appeals has decided an extraordinarily important matter. 
The court ruled that Section 109 of the Clean Air Act (CAA), 
42 U.S.C. 7409, as interpreted by EPA in setting revised 
National Ambient Air Quality Standards (NAAQS) for ozone 
and particulate matter (PM), effects an unconstitutional 
delegation of legislative authority. Pet. App. 4a. In addition, 
the court has reached out to decide matters not yet before it 
and ruled that EPA may enforce the revised ozone NAAQS 
only “in conformity with” CAA provisions that were enacted 
to serve a different purpose. Id. at 81a. The responses to 
the government’s petition leave no doubt that the challenged 
rulings, which divided the court of appeals, have great 
practical importance to the federal and state governments, 
industry, and the public at large. But of equal moment, 
those rulings present fundamental issues respecting the 
power of federal courts and the scope of judicial review. 
This case clearly warrants the Court’s review. 

1. The majority of responses to the government’s peti- 
tion agree that this Court should review the nondelegation 
ruling. That ruling deeply divided the court of appeals—five 
of the nine judges who participated in the en banc poll voted 
in favor of en banc review. Those judges not only concluded 
that the ruling raised a question of exceptional importance, 
see Fed. R. App. P. 35(a), but also condemned the ruling in 
strong terms, calling it “fundamentally unsound,” Pet. App. 
92a (Silberman, J., dissenting from denial of rehearing en 
banc), and a “depart[ure] from a half century of separation- 
of-powers jurisprudence,” id. at 99a (Tatel, J., dissenting 

3 

from denial of rehearing en banc). Correspondingly, the sug- 
gestions by those who oppose review that the court of 
appeals’ decision is actually “unexceptional,” “pedestrian” 
and presents “nothing remarkable” (APC Br. 11, 13, 14) 
warrant some skepticism. 

Although the industrial groups criticize the government 
rulemaking (and offer less-than-balanced depictions of the 
government’s decision and the rulemaking record, e.g., APC 
Br. 4-5, 12; ATA Br. 4-7), neither they nor their amici 
attempt to defend the court of appeals’ decision on its own 
terms. For example, ATA suggests that “a properly re- 
formulated version of the Government’s first question”— 
presumably, as ATA stated it (ATA Br. i)—would be 
“worthy of this Court’s review.” Id. at 1. But the govern- 
ment’s formulation of the question presented (Pet. I) is a 
virtual paraphrase of the court of appeals’ express holding. 
The court stated, “we find that the construction of the Clean 
Air Act on which EPA relied in promulgating the NAAQS at 
issue here effects an unconstitutional delegation of legis- 
lative power.” Pet. App. 4a. ATA’s preferred formulation, 
by contrast, avoids any mention of the court of appeals’ 
nondelegation rationale. See ATA Br. i ; see also Midwest 
States Br. i ; APC Br. i. 

There is good reason why respondents are unwilling to 
defend the court of appeals’ holding—that holding is indeed 
“fundamentally unsound.” Pet. App. 92a (Silberman, J., 
dissenting from denial of rehearing en banc). ATA concedes, 
and APC does not question, that the CAA “itself” is consti- 
tutional. ATA Br. 15 (Section 109 is “undisputedly” consti- 
tutional); APC Br. 8 (“The court did not hold the statute 
itself unconstitutional.”). To suggest otherwise would truly 
“depart from a half century of separation-of-powers juris- 
prudence.” Pet. App. 99a (Tatel, J., dissenting from denial of 
rehearing en banc). But ATA and APC must then face the 
quandary of explaining how, under the nondelegation doc- 

4 

trine, an agency could make an “undisputedly” constitutional 
statute unconstitutional. 

APC and ATA ultimately defend the court of appeals’ 
decision by recharacterizing it. APC suggests that “the con- 
stitutional ‘nondelegation’ rationale for remand in this case 
might as well have been articulated as ‘arbitrary and capri- 
cious’ agency action” and that the Court should be satisfied 
with the end result here “[w]hatever the rationale.” APC 
Br. 12, 13 (footnote omitted). ATA argues that the court 
merely applied “constitutional avoidance and nondelegation 
principles” as canons of statutory construction and produced 
an outcome that is “functionally indistinguishable from the 
work-a-day remands courts issue every time they invalidate 
an unreasonable agency interpretation under Chevron 
[U.S.A. Inc. v. Natural Resources Defense Council, Inc., 467 
U.S. 837 (1984)].” ATA Br. 10, 14. Those salvage efforts are 
unavailing. 

Contrary to APC’s and ATA’s suggestions, the rationale 
of the court of appeals’ decision does matter. The non- 
delegation doctrine, the arbitrary-and-capricious standard, 
and the Chevron doctrine each serve a different purpose. 
They are not interchangeable, and substituting one for the 
other ignores the logic and diminishes the utility of each. 
See Pet. 16-17; Pet. App. 94a-96a (Silberman, J., dissenting 
from rehearing en banc). Moreover, even if rationales were 
of no moment, the court of appeals’ ruling cannot be sus- 
tained on either of the bases that APC and ATA suggest. 

It is quite clear from the court of appeals’ decision that the 
panel majority did not equate its constitutional analysis with 
review under the “arbitrary and capricious” standard. The 
court of appeals noted it had repeatedly held, under the 
arbitrary and capricious standard, that 

when there is uncertainty about the health effects of 
concentrations of a particular pollutant within a parti- 
cular range, EPA may use its discretion to make the 

5 

“policy judgment” to set the standards at one point 
within the relevant range rather than another. NRDC v. 
EPA, 902 F.2d 962, 969 (D.C. Cir. 1980); American 
Petroleum Inst. v. Costle, 665 F.2d 1176, 1185 (D.C. Cir. 
1981); Lead Industries [Ass’n v. EPA, 647 F.2d 1130,] 
1161 (D.C. Cir. 1980). 

Pet. App. 12a. The court imposed a constitutional require- 
ment beyond what the arbitrary and capricious standard 
would call for—namely, a “determinate criterion for drawing 
lines” (id. at 6a)—because, in the court’s view, “none of those 
panels [in the previous cases] addressed the claim of undue 
delegation that we face here.” Id. at 12a. Plainly, the court 
ruled that the nondelegation doctrine imposes constitutional 
imperatives in addition to the requirements of the arbitrary 
and capricious standard. That holding also explains why the 
court found that it had to postpone a full review of the 
NAAQS under the arbitrary and capricious standard. Id. 
at 5a. 

It is also quite clear that the court of appeals did not 
employ nondelegation principles merely as a “construction 
canon[]” (ATA Br. 10) to avoid a constitutional issue. ATA 
claims that the court “reject[ed] EPA’s interpretation under 
Chevron” (ibid.), but the panel majority’s discussion does not 
even mention the Chevron doctrine, and the panel’s opinion 
on rehearing does so only as an epilogue, suggesting that the 
agency has discretion on remand to satisfy the court’s non- 
delegation requirement. Pet. App. 75a-76a. Indeed, the 
panel specifically disclaimed departing from the relevant 
circuit precedent upholding EPA’s interpretive discretion. 
See Pet. 10 n.4. But more fundamentally, ATA’s argument is 
logically inconsistent. If the relevant provisions of the CAA 
are “undisputedly” constitutional (ATA Br. 15)—and they 
are, see Pet. 11-16—then there is no need for a court to in- 
voke the nondelegation doctrine to “avoid” a constitutional 
issue. The issue before the court of appeals was whether the 

6 

agency misinterpreted the CAA or unreasonably exercised 
the discretion conferred by the CAA. The nondelegation 
doctrine has no bearing on those questions. 

In short, APC’s and ATA’s arguments highlight why the 
court of appeals’ analysis is indefensible. Furthermore, they 
provide a preview of the Pandora’s Box of doctrinal issues 
that will emerge if the decision is left uncorrected. The 
Court should therefore grant the government’s petition, 
make clear that the nondelegation doctrine should be con- 
fined to its proper role as a separation-of-powers constraint 
on Congress, and remand the case for the court of appeals to 
analyze the statutory and regulatory issues under the 
correct legal standards. See Pet. 16-17. 

2. APC, ATA, and the Midwest States argue that this 
Court should not review the court of appeals’ further ruling 
that “EPA can enforce a revised primary ozone NAAQS only 
in conformity with Subpart 2.” Pet. App. 81a. As we explain 
in our petition, Subpart 2 of Part D, Subchapter I of the 
CAA, 42 U.S.C. 7511-7511f, provides a detailed statutory 
scheme, including attainment deadlines, for implementing 
the ozone NAAQS standard that was in effect in 1990. Pet. 
4-5, 26. But Subpart 2 does not unambiguously address how 
to implement the revised ozone standards, which will neces- 
sarily require different attainment deadlines and imple- 
mentation schedules. Pet. 27-29 & n.16; see also Mass. Pet. 
5-8, 21-25. The question of how to implement the revised 
ozone NAAQS should be a matter for EPA and the States to 
address through authoritative rules that are subject to 
notice, comment, and judicial review. EPA has not yet 
conducted those rulemakings, and there was accordingly no 
occasion for the court of appeals to make broad pronounce- 
ments limiting EPA’s authority to implement the revised 
ozone NAAQS. Pet. 19-30. 
APC’s and ATA’s defense of the court of appeals’ action 
demonstrates why the matter warrants this Court’s review. 
They assert that the court of appeals reviewed final and ripe 

7 

agency action, but the two sources of supposedly final 
agency action on which they rely are: (1) EPA’s preamble 
statements responding to industry comments that Subpart 2 
provisions bar revision of the NAAQS; and (2) a final rule 
that was not at issue in the judicial proceedings below. See 
APC Br. 22-23; ATA Br. 6, 24, 27-28. If judicial review could 
be predicated on such bases, there would be an enormous 
expansion in unfocused challenges to agency regulatory 
programs and a corresponding expansion in the role of the 
courts in anticipating and supervising agency activities. 

We explain in the petition why preamble statements 
generally—and especially the preamble statements that the 
court of appeals relied upon here (62 Fed. Reg. 38,856, 
38,884-38,885 (1997))—do not constitute final agency action. 
Pet. 21-25. EPA has promulgated revised NAAQS that will 
be implemented through later rulemakings. See 40 C.F.R. 

50.7 (revised PM NAAQS); 40 C.F.R. 50.10 (revised ozone 
NAAQS). Respondents were entitled to challenge the re- 
vised NAAQS, and they were entitled to take issue with 
EPA’s reasoning, as expressed in the regulatory preamble, 
in making those challenges. But EPA’s preamble state- 
ments are only the agency’s explanation of the agency’s 
action—they are not themselves agency actions that are 
independently reviewable. The court of appeals accordingly 
had jurisdiction to affirm, set aside or remand the NAAQS, 
but once it completed that task, it could not go further and 
decide other issues that were not yet before it. See Pet. 21- 

25. 
In arguing that this rulemaking involves more, APC and 
ATA point to a rule that EPA issued in the ozone rule- 
making, 40 C.F.R. 50.9(b), respecting future enforcement of 
the 1-hour ozone NAAQS, which the revised 8-hour ozone 
NAAQS will replace. See APC Br. 23; ATA Br. 27-28. That 
rule states: 

8 

The 1-hour standards set forth in this section will no 
longer apply to an area once EPA determines that the 
area has air quality meeting the 1-hour standard. Area 
designations are codified in 40 CFR part 81. 

40 C.F.R. 50.9(b). EPA issued that rule to relieve areas that 
are in compliance with the 1-hour ozone NAAQS from the 
obligation to comply with both the old 1-hour standard and 
the new 8-hour standard. See 62 Fed. Reg. at 38,873.1 

APC characterizes 40 C.F.R. 50.9(b) (incorrectly, see note 
2, infra) as an “embodi[ment]” of “EPA’s legal conclusion” 
about how the revised ozone NAAQS should be imple- 
mented, and it argues that EPA’s issuance of that rule 
therefore subjects “EPA’s legal conclusion” to judicial 
review. APC Br. 23. Respondents fail to reveal, however, 
that no one challenged the validity of 40 C.F.R. 50.9(b), 
which was a minor component of the ozone rulemaking. The 
court of appeals did not review, or even mention, that rule. 
Hence, the rule was certainly not the actual predicate for the 
court of appeals’ ruling.2 

The court of appeals was entitled to rule on how “EPA can 
enforce a revised primary ozone NAAQS” (Pet. App. 81a) 
only if the parties had placed before the court a specific 
challenge to final agency action enforcing that NAAQS. No 
such challenge had been presented, and there accordingly 
was no basis for the court to address that question. Its 
overreaching cannot be justified by post hoc resort to the 

1 As a consequence of the court of appeal’s decision, EPA has pro- 
posed a modification of 40 C.F.R. 50.9(b) to maintain the 1-hour standard 
in effect until the ongoing legal challenges are resolved. See 64 Fed. Reg. 
57,424 (1999). 

2 An additional problem with respondents’ argument is that 40 C.F.R. 

50.9(b) is part of, and addresses enforcement of, the old ozone NAAQS. 
Compare 40 C.F.R. 50.9 with 40 C.F.R. 50.10. Accordingly, it is not 
accurate to characterize 40 C.F.R. 50.9(b) as implementing or enforcing 
the revised ozone NAAQS. The rule deals with only one aspect of the 
transition from the old ozone standard to the new ozone standard. 

9 

undiscussed implications of an unchallenged rule. That is 
particularly true where that rule merely addresses interim 
enforcement of the pre-existing NAAQS.3 

APC’s reliance on 40 C.F.R. 50.9(b) would make sense 
only if this Court accepted the contention that judicial re- 
view is available on an open-ended basis whenever the 
agency expresses a “legal conclusion” somewhere in the rule- 
making proceeding. Under that view, the party would not 
be required to challenge the particular rule that allegedly 
“embodied” that conclusion—it would be enough for the 
party simply to take issue with the agency’s general view of 
its regulatory authority. See APC Br. 23; see also ATA Br. 
27-28. That approach to administrative finality and ripeness 
is clearly unsound. The CAA predicates judicial review on 
challenges to final agency action. See CAA § 307(b), 42 
U.S.C. 7607(b). It does not give the courts unrestricted 
license to critique regulatory preambles or to review the 
general legal perspectives allegedly “embodied” in un- 
challenged regulations. 

3 Significantly, APC could have challenged 40 C.F.R. 50.9(b) in the 
proceedings below, and it should have if it disagreed with that rule. But 
APC did not do so because the rule is in industry’s interest—the rule 
reduces the regulatory burden on ozone sources. Since that time, an 
environmental group has brought a challenge to 40 C.F.R. 50.9(b), and the 
government opposed that challenge because it was untimely. See 
Environmental Defense Fund (EDF) v. Browner, No. 98-1363 (D.C. Cir.). 
Contrary to APC’s assertion (APC Br. 24), the government’s position 
there is consistent with its position here. Any petitions to review 40 
C.F.R. 50.9(b) should have been brought within 60 days of promulgation of 
the final rule. See 42 U.S.C. 7607. Neither EDF nor APC nor anyone else 
brought a timely judicial challenge to 40 C.F.R. 50.9(b). Rather, APC and 
others brought a timely judicial challenge to the revised ozone NAAQS, 40 
C.F.R. 50.10. The latter challenge put before the court the question 
whether to affirm, invalidate, or remand the revised ozone NAAQS, but it 
did not entitle the court to address the subjects of future rulemaking— 
including how the revised ozone NAAQS would eventually be enforced. 

10 

This Court therefore should grant review on the Subpart 
2 issues. In our view, the better course is to set aside on 
finality and ripeness grounds the court of appeals’ ruling 
limiting what actions EPA may take in future rulemakings. 
But if the Court reaches the merits, there is ample reason to 
declare the ruling wrong as a matter of law. See Pet. 27-30; 
Mass. Pet. 21-25; ALA Pet. 24-26; Eastern States Am. Br. 6- 

11. This Court’s resolution of the matter is warranted based 
on its practical importance to the federal government and 
the States. The Court’s review takes on added importance 
in light of APC’s incongruous interpretation of the court of 
appeals’ obscure statement that “EPA can enforce a revised 
primary ozone NAAQS only in conformity with Subpart 2” 
(Pet. App. 81a). In APC’s view, that statement means that 
EPA can promulgate—but not enforce—a revised ozone 
NAAQS.4 
For the foregoing reasons and the reasons stated in the 
petition for a writ of certiorari, the petition should be 
granted and consolidated with the petitions in No. 99-1263 
and No. 99-1265. 

Respectfully submitted. 

GARY S. GUZY 

General Counsel 
Environmental Protection 

Agency 
SETH P. WAXMAN 

Solicitor General 

APRIL 2000 

4 Notwithstanding the panel’s revisions of its opinion (Pet. App. 79a- 
82a) and Judge Tatel’s explanatory concurrence (id. at 89a), APC asserts 
that Subpart 2 “must preclude the EPA from requiring areas to comply 
either more quickly or with a more stringent ozone NAAQS.” APC Br. 9, 
28 (quoting panel opinion, emphasis supplied by APC). APC’s inter- 
pretation of the court’s ruling would transform the promulgation of that 
NAAQS and judicial review of its promulgation into largely academic 
exercises.