No. 99-1426 

In the Supreme Court of the United States 

AMERICAN TRUCKING ASSOCIATIONS, INC., 
ET AL., CROSS-PETITIONERS 

v. 

CAROL M. BROWNER, ADMINISTRATOR OF THE 

ENVIRONMENTAL PROTECTION AGENCY, ET AL. 

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

BRIEF FOR THE FEDERAL RESPONDENTS 

GARY S. GUZY 

General Counsel 
GERALD K. GLEASON 
MICHAEL L. GOO 

Attorneys 
Environmental Protection 

Agency 
Washington, D.C. 20460 
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 
CHRISTOPHER S. VADEN 
DAVID J. KAPLAN 
MARY F. EDGAR 

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

QUESTION PRESENTED 

Whether the court of appeals properly reaffirmed the 
longstanding principle that the Environmental Protection 
Agency is to set and revise National Ambient Air Quality 
Standards (NAAQS) based on consideration of the effects on 
public health and public welfare posed by a pollutant’s 
presence in the ambient air, and not on consideration of the 
technological feasibility, cost, or other alleged effects of 
implementing measures to attain NAAQS. 

(I) 

TABLE OF CONTENTS 

Page 

Opinions below ............................................................................... 
1 

Jurisdiction ...................................................................................... 1 

Statutory and regulatory provisions involved ......................... 

2 

Statement ........................................................................................ 2 

I. The Clean Air Act’s NAAQS provisions .................. 

5 

II. The particulate matter and ozone rules .................... 
8 

III. Proceedings below ........................................................ 
13 

Summary of argument .................................................................. 
14 

Argument: 

I. Congress has directed EPA to establish NAAQS 
based solely on consideration of the effects on 
public health and public welfare caused by the 

presence of criteria pollutants in the ambient 
air ....................................................................................... 17 

A. The text and context of Sections 108 and 109 

require EPA to set NAAQS based solely on 
the health and welfare effects of the criteria 
pollutants’ presence in the ambient air ............... 
18 

B. The evolution of the 1970 NAAQS provisions 
confirms that Congress made a policy choice 
not to base NAAQS on consideration of the 

technological feasibility or cost-effectiveness 
of pollution control measures ................................ 

21 
C. Congress’s direction that EPA set NAAQS 

based solely on health and welfare effects 
is consistent with the Clean Air Act’s 
“technology-forcing” objectives ............................ 

25 

D. Congress’s actions since 1970 confirm that 

EPA has correctly discerned congressional 
intent .......................................................................... 27 

(III) 

IV 

Table of Contents—Continued: 

Page 

II. ATA is mistaken in insisting that the Clean 

Air Act requires EPA to consider non-health 

factors in setting primary NAAQS ............................. 

32 

A. ATA’s supposed “trilemma” does not 
exist ............................................................................ 32 

B. The Clean Air Act’s express language 
refutes ATA’s view of EPA’s obligations in 
promulgating NAAQS ............................................ 
35 

1. Section 109(b)(1): The term “public 
health” .............................................................. 35 

2. Section 109(b)(2): The term “public 

welfare” ............................................................ 37 

3. Section 108(a)(2): The contents of air 
quality criteria ................................................ 
37 

4. Section 108(b)(1): Dissemination of pollution 
control information to States ....................... 
38 

5. Section 109(d)(2): CASAC’s advice to EPA 

on effects of implementation ........................ 
39 

6. Section 109(b)(1): Allowance for an adequate 
margin of safety .............................................. 
40 

7. Section 110(a)(2): Consideration of costs in 
the implementation program ....................... 
40 

8. Section 109(d)(1): Revision of NAAQS ......... 
42 

9. Section 101(b)(1): Goals of the CAA .............. 
42 

10. The UMRA and the RFA ................................ 
43 

C. The Administrator did not base her NAAQS 

decisions on consideration of compliance 
costs ........................................................................... 44 

D. Congress has resolved the public policy 

question of whether cost-benefit analysis 
should be used in setting NAAQS ....................... 45 

V 

Table of Contents—Continued: 

Page 

III. Expanding the range of factors that EPA may 
consider in setting NAAQS would neither re- 
solve nor avoid the constitutional issue perceived 
by the court of appeals ................................................... 
47 

Conclusion ....................................................................................... 50 

Appendix ......................................................................................... 1a 

TABLE OF AUTHORITIES 

Cases: Page 

American Lung Ass’n v. EPA, 134 F.3d 388 
(D.C. Cir. 1998) ....................................................................... 
2-3 

American Petroleum Inst. v. Costle, 665 F.2d 1176 
(D.C. Cir. 1981), cert denied, 455 U.S. 1034 (1982) .......... 
3, 

10, 11-12, 34, 45 
American Textile Mfrs. Inst. v. Donovan, 452 U.S. 
490 (1981) ....................................................................... 

21, 43, 49 

Babbitt v. Sweet Home Chapter of Communities, 
515 U.S. 687 (1995) ................................................................ 
37 

Bates v. United States, 522 U.S. 23 (1997) ........................ 
36 

Bob Jones Univ. v. United States, 461 U.S. 574 
(1983) ........................................................................................ 31 

Botany Worsted Mills v. United States, 278 U.S. 
282 (1929) ................................................................................. 

19 

Brown v. Gardner, 513 U.S. 115 (1994) .............................. 
21 

CFTC v. Schor, 478 U.S. 833 (1986) ................................... 
48 

Central Bank of Denver, N.A. v. First Interstate 

Bank of Denver, N.A., 511 U.S. 164 (1994) ...................... 

47 

Chevron U.S.A. Inc. v. NRDC, 467 U.S. 837 
(1984) .............................................................................. 
13, 18, 31 

FDA v. Brown & Williamson Tobacco Corp., 120 

S. Ct. 1291 (2000) ................................................................... 

31 

Federal Energy Administration v. Algonquin SNG, 

Inc., 426 U.S. 548 (1976) ...................................................... 48 

VI 

Cases—Continued: Page 

George E. Warren Corp. v. EPA, 159 F.3d 616 
(D.C. Cir. 1998) ..................................................................... 
41 

Gustafson v. Alloyd Co., 513 U.S. 561 (1995) ................... 
35 

Jarecki v. G.D. Searle & Co., 367 U.S. 303 (1961) ........... 
37 

Lead Industries Ass’n v. EPA, 647 F.2d 1130 (D.C. 
Cir.), cert. denied, 449 U.S. 1042 (1980) ................... 
2, 12, 13, 

19, 25, 27, 33, 34, 37, 40 
Lorillard v. Pons, 434 U.S. 575 (1978) ............................... 

31 

Michigan v. EPA, 213 F.3d 663 (D.C. Cir. 2000) ......... 
35, 41 

Miller v. French, 120 S. Ct. 2246 (2000) ............................ 
48 

Motor Vehicle Mfrs. Ass’n v. State Farm Mut. Auto. 

Ins. Co., 463 U.S. 29 (1983) ................................................. 

34 

NLRB v. Bell Aerospace Co., 416 U.S. 267 (1974) ........... 
31 

NRDC v. EPA: 
824 F.2d 1146 (D.C. Cir. 1987) .......................... 
3, 25, 30, 40, 41 

902 F.2d 962 (D.C. Cir. 1990), cert. denied, 498 

U.S. 1082 (1991) .................................................... 
2, 10, 13, 34 

937 F.2d 641 (D.C. Cir. 1991) ............................................... 
41 

National R.R. Passenger Corp. v. National Ass’n of 

R.R. Passengers, 414 U.S. 453 (1974) ............................... 

19 

Red Lion Broad. Co. v. FCC, 395 U.S. 367 (1969) ........... 
31 

Russello v. United States, 464 U.S. 16 (1983) .................. 
21 

Textron Lycoming Reciprocating Engine Div. v. 

Automobile Workers, 523 U.S. 653 (1998) .................... 

35-36 

Train v. NRDC, 421 U.S. 60 (1975) .......................... 
17, 23, 24 

Union Elec. Co. v. EPA, 427 U.S. 246 (1976) ...... 
4, 7, 15, 17, 

20, 25, 27 
United States v. Noland, 517 U.S. 535 (1996) ................... 

47 

United States v. Shabani, 513 U.S. 10 (1994) ................... 
21 

Virginia v. EPA, 108 F.3d 1397 (D.C. Cir. 1997) ............. 
20 

Walters v. Metropolitan Educ. Enters., Inc., 519 

U.S. 202 (1997) ........................................................................ 

36 

Statutes: 

Air Pollution Control Act of 1955, ch. 360, 69 Stat. 
322 ............................................................................................. 5 

VII 

Statutes—Continued: Page 

Air Quality Act of 1967, Pub. L. No. 90-148, 81 Stat. 
485 ............................................................................................. 22 

§ 107, 81 Stat. 490-491 ..................................................... 

22 

§ 107(b)(2), 81 Stat. 491 ................................................... 
22 

§ 107(b)(3), 81 Stat. 491 ................................................... 
22 

§ 107(c), 81 Stat. 491 ........................................................ 
23 

§ 108(c), 81 Stat. 492-494 ......................................... 
5, 22, 23 

Clean Air Act, 42 U.S.C. 7401 et seq. ..................................... 
2 

§ 101(b), 42 U.S.C. 7410(b) .............................................. 
42 

§ 101(b)(1), 42 U.S.C. 7401(b)(1) ............................ 
42-43, 1a 

§ 108, 42 U.S.C. 7408 .................. 
2, 5, 17, 18, 19, 42, 43, 1a 

§ 108(a)(1), 42 U.S.C. 7408(a)(1) ..................................... 

5, 1a 

§ 108(a)(2), 42 U.S.C. 7408(a)(2) ............................. 
passim 

§ 108(a)(2)(A)-(C), 42 U.S.C. 7408(a)(2)(A)-(C) ... 
6, 22, 2a 

§ 108(b), 42 U.S.C. 7408(b) ........................................ 
23, 3a 

§ 108(b)(1), 42 U.S.C. 7408(b)(1) ................................ 
38, 3a 

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

§ 109(a)(1), 42 U.S.C. 7409(a)(1) ..................................... 
5, 4a 

§ 109(b), 42 U.S.C. 7409(b) ......................... 
2, 17, 19, 32, 5a 

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

§ 109(b)(2), 42 U.S.C. 7409(b)(2) ....................... 
5, 14, 15, 18, 

23, 36, 37, 5a 

§ 109(d)(1), 42 U.S.C. 7409(d)(1) ......................... 
5, 9, 42, 5a 
§ 109(d)(2), 42 U.S.C. 7409(d)(2) ................................ 
39, 6a 

§ 109(d)(2)(B), 42 U.S.C. 7409(d)(2)(B) ..................... 
39, 6a 

§ 109(d)(2)(C), 42 U.S.C. 7409(d)(2)(C) ............... 
39, 40, 6a 

§ 109(d)(2)(C)(iv), 42 U.S.C. 7409(d)(2)(C)(iv) ........ 
14, 39 

§ 110, 42 U.S.C. 7410 ......................................... 
2, 4, 6, 20, 7a 

§ 110(a)(2), 42 U.S.C. 7410(a)(2) ................................. 
41, 7a 

§ 110(a)(2)(D), 42 U.S.C. 7410(a)(2)(D) ..................... 
41, 7a 

§ 110(k), 42 U.S.C. 7410(k) .............................................. 
20 

§ 112, 42 U.S.C. 7412 .............................................. 
30, 40, 41 

§§ 181-192, 42 U.S.C. 7511-7514a (1994 & Supp. 

IV 1998) ......................................................................... 

29 

§ 183(a), 42 U.S.C. 7511b(a) ............................................ 
7 

§ 183(e)(1)(A), 42 U.S.C. 7511b(e)(1)(A) ...................... 7 

VIII 

Statutes—Continued: Page 

§ 202(a), 42 U.S.C. 7521(a) .............................................. 
7 

§ 202(i)(2)(A)(i), 42 U.S.C. 7521(i)(2)(A)(i) ................... 
7 

§ 211(h)(1), 42 U.S.C. 7545(h)(1) .................................... 
7 

§ 211(k)(1), 42 U.S.C. 7545(k)(1) .................................... 
7 

§ 213(a)(3), 42 U.S.C. 7547(a)(3) ..................................... 
7 

§ 302(h), 42 U.S.C. 7602(h) .............................................. 
37 

§ 307(d)(4)(B)(ii), 42 U.S.C. 7607(d)(4)(B)(ii) ............... 
44 

§ 307(d)(7)(A), 42 U.S.C. 7607(d)(7)(A) ........................ 
44 

Clean Air Act of 1963, Pub. L. No. 88-206, 77 Stat. 
392 ............................................................................................. 21 

§ 3(c), 77 Stat. 395 .......................................................... 

5, 21 

Clean Air Act Amendments of 1977, Pub. L. No. 
95-95, 91 Stat. 685 .................................................................. 
5 

§ 106, 91 Stat. 691 ............................................................. 
29 

§ 172, 91 Stat. 746-747 ..................................................... 
29 

§ 323, 91 Stat. 785 ............................................................. 
30 

§ 323(a), 91 Stat. 785 ........................................................ 
30 

Clean Air Act Amendments of 1990, Pub. L. No. 
101-549, Tit. I, 104 Stat. 2399 .............................................. 
4, 5 

§ 301, 104 Stat. 2531 .......................................................... 
30 

Clean Air Amendments of 1970, Pub. L. No. 91-604, 
84 Stat. 1676 ............................................................................ 
5 

§ 109, 84 Stat. 1678 ........................................................... 
5 

§ 109, 84 Stat. 1679 ........................................................... 
5 

§ 110(e)(1), 84 Stat. 1682 ................................................. 
20 

§ 110(f), 84 Stat. 1682-1683 ............................................. 
20 

§ 111(a)(1), 84 Stat. 1683 ................................................. 
20 

§ 112(c)(1), 84 Stat. 1685 .................................................. 
20 

§ 112(c)(2), 84 Stat. 1685-1686 ........................................ 
20 

§ 202(a)(2), 84 Stat. 1690 ................................................. 
20 

§ 202(b)(5)(A), 84 Stat. 1691 ........................................... 
20 

§ 231(b), 84 Stat. 1704 ...................................................... 
20 

Department of Housing and Urban Development- 
Independent Agencies Appropriation Act, 1983, 
Pub. L. No. 98-45, 97 Stat. 219 ............................................ 29 

IX 

Statutes—Continued: Page 

Regulatory Flexibility Act, 5 U.S.C. 601 et seq. ............. 
43, 44 

5 U.S.C. 604(a)(5) (1994 & Supp. IV 1998) ........................ 
43 

5 U.S.C. 611 (1994 & Supp. IV 1998) .................................. 
44 

Steel Industry Compliance Extension Act of 1981, 

Pub. L. No. 97-23, 95 Stat. 139 ............................................ 

29 

Unfunded Mandates Reform Act, 2 U.S.C. 1501 
et seq. ........................................................................................ 
43 

2 U.S.C. 1535(b)(2) (Supp. IV 1998) .............................. 
43 

Miscellaneous: 

Black’s Law Dictionary (7th ed. 1999) ................................. 

36 

Casarett & Doull’s Toxicology: The Basic Science of 

Poisons (5th ed. 1996) ....................................................... 

12, 33 

116 Cong. Rec. (1970): 

p. 32,901 ......................................................................... 

24, 43 

p. 32,902 ......................................................................... 
26, 27 

p. 32,905 ............................................................................. 
28 

p. 32,918 ............................................................................. 
27 

p. 32,919 ............................................................................. 
27 

p. 33,099 ......................................................................... 
26, 40 

p. 42,522 ............................................................................. 
43 

EPA, The Benefits and Costs of the Clean Air Act, 
1970 to 1990 (Oct. 1997) ......................................................... 
49 

36 Fed. Reg. 8186 (1971) ......................................................... 
17-18 

52 Fed. Reg. 24,641 (1987) ...................................................... 
10 

61 Fed. Reg. (1996): 
pp. 65,641-65,643 .................................................................. 
8 

pp. 65,719-65,720 .................................................................. 
8 

pp. 65,721-65,723 .................................................................. 33 

p. 65,727 ............................................................................... 32-33 

62 Fed. Reg. (1997): 
pp. 38,427-38,428 .................................................................. 12 

p. 38,676 ............................................................................... 12 

p. 38,685 ........................................................................... 28, 29 

pp. 38,683-38,688 .................................................................. 18 

pp. 38,683-38,689 .................................................................. 44 

X 

Miscellaneous—Continued: Page 

p. 38,702 ............................................................................... 44 

p. 38,703 ............................................................................... 44 

p. 38,863 ............................................................................. 11-12 

p. 38,864 ............................................................................... 12 

pp. 38,880-38,881 .................................................................. 

9 

p. 38,881 ............................................................................... 10 

pp. 38,878-38,883 .............................................................. 

18, 44 

p. 38,887 ............................................................................... 44 

E. Goodstein & H. Hodges, Polluted Data, The 

American Prospect, No. 35 (Nov.-Dec. 1997) ................... 
25 

W. Harrington, P. Morgenstern & R. Nelson, On the 

Accuracy of Regulatory Cost Estimates, Resources for 
the Future Discussion Paper 99-18 (1999) ........................ 

46 
Hearings on Air Pollution Before the Subcomm. on 

Air and Water Pollution of the Senate Comm. on 
Pub. Works, 91st Cong., 2d Sess. Pt. 4 (1970) ................. 

24, 28 
Hearings on the Clean Air Act: Ozone and Particu- 
late Matter Standards Before the Subcomm. on 
Clean Air, Wetlands, Private Property and Nuclear 
Safety and the Senate Comm. on Env’t and Pub. 
Works, 105th Cong., 1st Sess. (1997) ............................. 
18, 47 

Hearings on the Clean Air Amendments of 1977 

Before the Subcomm. on Envtl. Pollution of the 
Senate Comm. on Env’t and Pub. Works, 95th 
Cong., 1st Sess., Pt. 2 (1977) ................................................ 

28 
Hearings on Clean Air Act Oversight Before the 

Senate Comm. on Env’t and Pub. Works, 97th 
Cong., 1st Sess., Pt. 3 (1981) ................................................ 

31 
Hearings on Health Standards for Air Polluntants 

Before the Subcomm. on Health and the Env’t of 
the House Comm. on Energy and Commerce, 
97th Cong., 1st Sess. (1981) ................................................. 

31 
Hearings on Implementation of the Clean Air Amend- 
ments of 1970 Before the Subcomm. on Air and 
Water Pollution of the Senate Comm. on Pub. 
Works, 92d Cong., 2d Sess., Pt. 1 (1972) ............................ 28 

XI 

Miscellaneous—Continued: Page 

L. Heinzerling, Regulatory Costs of Mythic Pro- 
portions, 107 Yale L.J. 1981 (1998) ..................................... 
46 

H.R.J. Res. 395, 100th Cong., 1st Sess. (1987) ..................... 
29 

H.R. Rep. No. 294, 95th Cong., 1st Sess. (1977) .......... 
28, 39-40 

H.R. Rep. No. 490, 101st Cong., 2d Sess. Pt. 1 
(1990) .................................................................................... 30-31 

H.R. Rep. No. 728, 90th Cong., 1st Sess. (1967) .............. 

22, 23 

Joint Hearings on Reports of the Nat’l Commission on 

Air Quality and the Nat’l Academy of Sciences Before 
the Senate Comm. on Env’t and Pub. Works and the 
Subcomm. on Health and the Env’t of the House 
Comm. on Energy and Commerce, 97th Cong., 1st 
Sess. (1981) .............................................................................. 
30 

M. Landy, M.J. Roberts & S. Thomas, The Environ- 
mental Protection Agency: Asking the Wrong 
Questions from Nixon to Clinton (Oxford Univ. 
Press 1994) .............................................................................. 
45 

H. Latin, Good Science, Bad Regulation and Toxic 

Risk Assessment, 5 Yale J. on Reg. 89 (1988) .................. 

46 

Letter from M. Akher, M.D., M.P.H., Executive 

Director, APHA, to C. Browner, Administrator, EPA, 
Docket IV-G-1826 (June 27, 1997) ...................................... 

36 
T. McGarity, A Cost-Benefit State, 50 Admin. L. 

Rev. 7 (1998) ........................................................................... 

46 

National Comm’n on Air Quality Report (Mar. 1981) ........ 30, 49 

S. Rep. No. 638, 88th Cong., 1st Sess. (1963) ....................... 

22 

S. Rep. No. 403, 90th Cong., 1st Sess. (1967) ..................... 
22, 23 

S. Rep. No. 1196, 91st Cong., 2d Sess. (1970) ................ 
26, 27, 

33, 40 

S. Rep. No. 228, 101st Cong., 1st Sess. (1989) ..................... 
31 
A. Scalia, Responsibilities of Regulatory Agencies 

Under Environmental Laws, 24 Hous. L. Rev. 97 
(1987) .............................................................................. 
34, 36, 48 

S. Shapiro & T. McGarity, Not So Paradoxical: The 

Rationale for Technology-Based Regulation, 1991 
Duke L.J. 729 .......................................................................... 46 

XII 

Miscellaneous—Continued: Page 

Staff of Senate Comm. on Pub. Works, 93d Cong., 
2d Sess., A Legislative History of the Clean Air 
Amendments of 1970 (Comm. Print): 

Vol. 1 .............................................. 
24, 26, 27, 28, 33, 40, 43 

Vol. 2 ................................................................................ 

24, 28 

W. Wagner, The Science Charade in Toxic Regulation, 
95 Colum. L. Rev. 1613 (1995) ............................................. 
45 

Webster’s Third New International Dictionary 
(1976) ........................................................................................ 36 

In the Supreme Court of the United States 

No. 99-1426 

AMERICAN TRUCKING ASSOCIATIONS, INC., 
ET AL., CROSS-PETITIONERS 

v. 

CAROL M. BROWNER, ADMINISTRATOR OF THE 

ENVIRONMENTAL PROTECTION AGENCY, ET AL. 

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

BRIEF FOR THE FEDERAL RESPONDENTS 

OPINIONS BELOW 

The opinion of the court of appeals (Pet. App. 1a-69a) is 
reported at 175 F.3d 1027.1 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 federal govern- 
ment’s petition for a writ of certiorari in No. 99-1257 was 
filed on January 27, 2000, and was granted on May 22, 2000. 
The conditional cross-petition of American Trucking Asso- 
ciation, et al., was filed on February 28, 2000, and was 
granted on May 30, 2000. The jurisdiction of this Court rests 
on 28 U.S.C. 1254(1). 

1 “Pet. App.” refers to the petition appendix in Browner v. American 
Trucking Ass’ns, No. 99-1257. 

(1) 

2 

STATUTORY AND REGULATORY PROVISIONS 
INVOLVED 

Relevant portions of Sections 101, 108, 109, and 110 of the 
Clean Air Act, 42 U.S.C. 7401, 7408, 7409, 7410, are set forth 
at App., infra, 1a-8a. Other sections of the Clean Air Act are 
set forth at Pet. App. 105a-126a. 

The EPA rules at issue in this case are set forth at Pet. 
App. 102a-104a. 

STATEMENT 

Section 109 of the Clean Air Act (CAA), 42 U.S.C. 7409, 
requires EPA to establish and periodically revise primary 
National Ambient Air Quality Standards (NAAQS) “requi- 
site to protect” public health with “an adequate margin of 
safety,” and secondary NAAQS “requisite to protect” public 
welfare. EPA is to set NAAQS “based on” the “air quality 
criteria” that EPA must prepare under Section 108. 42 
U.S.C. 7409(b). Section 108 of the Act further specifies that 
the air quality criteria for each pollutant subject to the 
NAAQS requirement must “accurately” reflect “the latest 
scientific knowledge” on the effects on public health and 
public welfare posed by “the presence of such pollutant in 
the ambient air, in varying quantities.” 42 U.S.C. 7408(a)(2). 

In the thirty years since enactment of these provisions, 
EPA has consistently recognized that the plain language of 
Sections 108 and 109 requires the agency to set and revise 
NAAQS based solely on consideration of the effects of 
ambient air pollutants on public health and public welfare, 
and not on the feasibility or effects of measures designed to 
attain the NAAQS. In an unbroken line of cases beginning 
with Lead Industries Ass’n v. EPA, 647 F.2d 1130, 1148, 
cert. denied, 449 U.S. 1042 (1980), the District of Columbia 
Circuit has repeatedly, and “emphatically,” affirmed this 
principle. NRDC v. EPA, 902 F.2d 962, 973 (D.C. Cir. 1990), 
cert. denied, 498 U.S. 1082 (1991); see Pet. App. 19a-21a; 
American Lung Ass’n v. EPA, 134 F.3d 388, 389 (D.C. Cir. 

3 

1998); 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) (Section 109 “on its face 
does not allow consideration of technological or economic 
feasibility”). 

In their cross-petition seeking review of this longstanding 
interpretation, American Trucking Associations, et al. (ATA) 
have asked this Court to overturn a principle on which three 
decades of federal and state air quality regulation have 
rested. ATA would have EPA expand the range of factors 
that it considers in setting the NAAQS. Under ATA’s 
approach, EPA would not only consider the health and 
welfare effects associated with the presence of a criteria 
pollutant in the ambient air, but would be required addition- 
ally to consider the feasibility, costs, and other effects of 
measures to remove the pollutant from the air. 

As we explain in the Argument section of this brief, 
ATA’s construction of the Act is inconsistent with the statu- 
tory text, with the overall scheme of the NAAQS program, 
and with other indicia of congressional intent. But it is 
important to emphasize at the outset a point that ATA, other 
industry groups, and their amici largely ignore: The CAA 
provides for consideration of economic and technological 
feasibility, but at later stages of the regulatory process. One 
might suppose from their submissions that setting the 
NAAQS is the sole component of the CAA’s detailed process 
for improving air quality or that economic and technological 
feasibility are never considered in any other step of the 
CAA’s elaborate process. That is simply not so. 

The NAAQS serve as air quality targets for certain 
“criteria” pollutants based on the aggregate concentration of 
each in the ambient air; but the NAAQS are not, themselves, 
directly enforceable against regulated entities that emit 
those pollutants. See Pet. App. 26a-31a. Rather, the States 
seek to achieve the NAAQS through state implementation 

4 

plans (SIPs), which impose enforceable emission limitations 
and other pollution controls. See CAA § 110, 42 U.S.C. 7410. 
Economic and technological feasibility are taken into account 
at that stage of the regulatory program, when the States 
determine, in concrete form, what pollution controls are 
appropriate. See Union Elec. Co. v. EPA, 427 U.S. 246, 266- 
269 (1976). 

As this Court has recognized, Congress provided “ample 
opportunity” for consideration of economic and technological 
feasibility at the implementation stage of the regulatory 
process. Union Elec., 427 U.S. at 268. Moreover, if EPA or 
the States conclude at that later stage, when control alter- 
natives receive detailed consideration, that they cannot 
accommodate the regulated community’s concerns consistent 
with their statutory obligations, then the regulated commu- 
nity can—and regularly does—present its concerns to Con- 
gress. Congress has reserved to itself the responsibility for 
adjusting the CAA as necessary to accommodate concerns 
regarding societal costs, and Congress has taken legislative 
action when it has concluded that such action is warranted. 
See, e.g., Clean Air Act Amendments of 1990, Pub. L. No. 
101-549, 104 Stat. 2399 (imposing new requirements for 
nonattainment areas). 

In our opening brief in No. 99-1257, we have provided the 
Court with a description of the CAA provisions governing 
the initial promulgation, revision, and implementation of 
NAAQS, Pet. Br. 2-8, as well as a summary of the extensive 
explanations for the Administrator’s 1997 decisions to revise 
the NAAQS for particulate matter (PM) and ozone, id. at 8- 

15. We accordingly will provide here only a brief discussion 
of the statutory provisions put at issue by ATA’s cross- 
petition. We will also clarify a few additional key points 
regarding the record basis for EPA’s decisions to revise the 
PM and ozone NAAQS. 

5 

I. The Clean Air Act’s NAAQS Provisions 

Sections 108 and 109 of the CAA, which govern EPA’s 
development of air quality criteria and NAAQS, were 
enacted in 1970. 84 Stat. 1678-1679.2 Since then, the CAA 
has required EPA to set and periodically revise “primary” 
and “secondary” NAAQS for certain ubiquitous air pollut- 
ants, known as criteria pollutants. 42 U.S.C. 7409(a)(1) and 
(d)(1). 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). 

Section 109 requires both primary and secondary NAAQS 
to be “based on * * * criteria” that EPA develops under 
Section 108. Under that Section, EPA must identify, and 
develop “air quality criteria” for, pollutants that are emitted 
from “numerous or diverse” sources and that “may reason- 
ably be anticipated to endanger public health or welfare.” 42 
U.S.C. 7408(a)(1). Section 108 specifies that the “air quality 

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, 
§ 3(c), 77 Stat. 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 Amendments of 1970, Pub. L. No. 91-604, 84 Stat. 1676, which pro- 
vided for national ambient air quality standards and for state implementa- 
tion. See 84 Stat. 1679. 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 pp. 21-25, infra. 

6 

criteria” shall reflect the effects on public health and public 
welfare associated with the “presence” of a criteria pollutant 
“in the ambient air”: 

Air quality criteria for an air pollutant shall accurately 
reflect the latest scientific knowledge useful in indicating 
the kind and extent of all identifiable effects on public 
health or welfare which may be expected from the 
presence of such pollutant in the ambient air, in varying 
quantities. 

42 U.S.C. 7408(a)(2). The CAA then specifies three types of 
information—each of which falls within the general definition 
set forth above—that, “to the extent practicable,” the 
criteria shall “include”: 

(A) those variable factors (including atmospheric 
conditions) which of themselves or in combination with 
other factors may alter the effects on public health or 
welfare of such air pollutant; 

(B) the types of air pollutants which, when present in 
the atmosphere, may interact with such pollutant to 
produce an adverse effect on public health or welfare; 
and 

(C) any known or anticipated adverse effects on welfare. 

42 U.S.C. 7408(a)(2)(A)-(C). 

As we have previously explained in more detail (see 99- 
1257 Pet. Br. 5-8), the CAA sets out an elaborate process, 
resting on principles of federal-state cooperation, to ensure 
that the air throughout the Nation “attains” the NAAQS. 
Under the CAA, the primary mechanisms for implementing 
the NAAQS are the SIPs, which set forth the pollution con- 
trol measures necessary to attain all NAAQS by statutorily 
required dates. The States are expressly authorized under 
Section 110 to consider the economic and technological fea- 
sibility of the pollution control measures they include in their 

7 

SIPs. Union Elec., 427 U.S. at 256-269. As this Court has 
explained (id. at 266): 

Perhaps the most important forum for consideration of 
claims of economic and technological infeasibility is 
before the state agency formulating the implementation 
plan. So long as the national standards are met, the 
State may select whatever mix of control devices it 
desires * * * and industries with particular economic or 
technological problems may seek special treatment in the 
plan itself. 

In addition, EPA itself has responsibility under the Act 
for taking various actions to implement the NAAQS. Just as 
the States may consider economic and technological feasibil- 
ity in developing their SIPs, the Act generally grants EPA 
discretion to consider those factors when it acts to imple- 
ment the NAAQS it has promulgated. For example, under 
Section 183 (“Federal ozone measures”), EPA is to issue 
control techniques guidelines, taking cost into account. 42 
U.S.C. 7511b(a) and (e)(1)(A). Similarly, under Section 
202(i)(2)(A)(i), EPA is to determine whether additional 
regulations for light-duty trucks are required to attain or 
maintain the NAAQS and, if so, to promulgate cost-effective 
regulations. 42 U.S.C. 7521(i)(2)(A)(i).3 

3 See also, e.g., CAA § 211(k)(1), 42 U.S.C. 7545(k)(1) (requiring EPA 
to promulgate standards for reformulated gas to be used in nonattainment 
areas, taking cost into account); CAA § 211(h)(1), 42 U.S.C. 7545(h)(1) 
(requiring EPA to set standards for gasoline volatility in nonattainment 
areas, taking cost into account); CAA § 213(a)(3), 42 U.S.C. 7547(a)(3) 
(requiring EPA to determine whether emissions from nonroad engines 
contribute significantly to ozone concentrations in more than one 
nonattainment area and to promulgate appropriate nonroad regulations, 
considering costs); CAA § 202(a), 42 U.S.C. 7521(a) (authorizing EPA to 
set engine standards for pollutants that may “reasonably be anticipated to 
endanger public health or welfare,” taking the cost of compliance into 
account). 

8 

II. The Particulate Matter and Ozone Rules 

ATA’s cross-petition presents a straightforward issue of 
statutory construction that may be resolved without 
consideration of the records in the underlying rulemaking 
proceedings. Nevertheless, we must briefly respond to the 
characterization of those rulemaking records by ATA and its 
supporters. Contrary to that portrayal, those records show 
an extensive body of newly available scientific information, 
in both the PM and ozone rulemakings, that called for 
revision of the existing standards to address a wide range of 
adverse health effects. 

1. EPA’s revised PM and ozone NAAQS address real 
and significant effects, not merely hypothetical risks. EPA 
was confronted with consistent and persuasive evidence, 
from study after study, that as PM levels rise the number of 
people who actually die or enter hospitals—especially due to 
cardiovascular and respiratory disease—rises correspond- 
ingly. 61 Fed. Reg. 65,641-65,643 (1996); 97-1440 CA App. 
(PM App.) 1375-1778, 1801-1845.4 In addition to similar 
epidemiological evidence linking ozone to increased hospital 
admissions in real populations, the ozone record contains 
numerous clinical studies that demonstrate ozone’s deleteri- 
ous effects on the human respiratory system. 61 Fed. Reg. 
at 65,719-65,720. In those studies, researchers measured 
respiratory effects in human volunteers exposed to ozone 
under controlled laboratory conditions. 97-1441 CA App. 
(Ozone App.) 1461-1462. 

4 Indeed, the court of appeals considered and rejected ATA’s assertion 
(see ATA Br. 13) that EPA should not have revised the PM standard 
because of uncertainty as to the biological mechanism by which PM may 
cause the health effects shown in more than 60 epidemiological studies. 
Pet. App. 55a-56a. The court found that the record “amply justifie[d] 
establishment of new fine particle standards.” Id. at 56a. No party sought 
review of this portion of the court of appeals’ decision. 

9 

In providing a thorough and objective explanation of its 
decisions, EPA did identify areas of scientific uncertainty, on 
which ATA and Respondent Appalachian Power Company, 
et al. (APC) have focused so singularly in their statements of 
the case. E.g., ATA Br. 15; APC Br. 13. As EPA explained 
in response to comments on the PM rule, “uncertainty and 
controversy on scientific issues are inherent in the statutory 
scheme, which in effect requires decisions ‘at the very “fron- 
tiers of scientific knowledge’ ” where ‘disagreement among 
the experts is inevitable.’ ” 
PM App. 266 (quoting Lead 

Indus., 647 F.2d at 1160); see also 62 Fed. Reg. 38,880-38,881 
(1997). Those inherent uncertainties do not transform the 
observed adverse health effects addressed by the revised 
standards into merely theoretical or hypothetical risks. 

2. EPA did not revise the PM and ozone NAAQS simply 
to change its method for “management of predicted risks 
addressed by the then-current standards” (APC Br. 14). 
EPA acted because new scientific evidence revealed that 
adverse health effects are associated with lower concentra- 
tions of PM and ozone than had been indicated by the 
evidence available in prior NAAQS reviews. Congress has 
required that EPA periodically review the air quality 
criteria and NAAQS in light of new scientific knowledge and 
revise them as appropriate. 42 U.S.C. 7409(d)(1). When 
the Administrator reviewed and revised the PM and ozone 
NAAQS, she did so based on “the latest scientific knowl- 
edge” of the effects associated with the presence of these 
two pollutants in the ambient air. 42 U.S.C. 7408(a)(2). 

The evidence available in 1997 differed significantly from 
that available earlier, reflecting refinements in analytical 
techniques, substantial new research, and new information 
on the kind and severity of health effects associated with the 
two pollutants.5 For example, when EPA promulgated the 

5 The Administrator noted that the science underlying the 1997 
decisions was more extensive and of higher quality than that underlying 

10 

PM10 standards in 1987, only “a small number” of epidemi- 
ological studies were available for determining the concen- 
trations at which PM is likely to affect public health. 52 Fed. 
Reg. 24,641 (1987). EPA set the 1987 PM10 standards at 
levels that reasonably appeared to provide an adequate 
margin of safety against the health effects identified in the 
studies then available. See NRDC, 902 F.2d at 971-972 
(summarizing basis for 1987 PM standards). 

By the time of the most recent review, however, a large 
body of new evidence on the health effects of the two pollut- 
ants was available. More than 60 epidemiological studies 
showed that PM concentrations below the level of the 1987 
standards are the likely cause of premature death and other 
serious adverse health effects. See 99-1257 Pet. Br. 9-10.6 
Similarly, new research demonstrated that adverse health 
effects are caused by exposure to ozone at lower concentra- 
tions, over longer periods, and at more moderate levels of 
exertion than had been shown by studies available during 
previous ozone reviews. See id. at 11-12. Accordingly, the 
Administrator’s decision to revise the standards did not 
reflect merely a different judgment about how to manage the 
same risks her predecessors had considered. 

3. CASAC unambiguously advised the Administrator 
that the PM and ozone NAAQS should be revised, unani- 
mously recommending that EPA replace the one-hour ozone 

the previous PM and ozone standards, which had been upheld on judicial 
review. 62 Fed. Reg. at 38,881 n. 53; see NRDC, 902 F.2d 962 (1987 
PM NAAQS); American Petroleum Inst., 665 F.2d 1176 (1979 ozone 
NAAQS). 

6 The final chapter of the PM Criteria Document, which the Clean Air 
Scientific Advisory Committee (CASAC) characterized as the “best ever 
example of a true integrative summary of the state of knowledge about 
the health effects of airborne PM” (PM App. 3150), concluded that the 
available evidence “provide[s] ample reason to be concerned that there are 
detectable human health effects attributable to PM at levels below the 
current NAAQS.” Id. at 1870 (emphasis added). See 99-1257 Pet. Br. 4 
(describing CASAC’s role). 

11 

NAAQS with an eight-hour standard (Ozone App. 236-238), 
and almost unanimously (19 of 21 panel members) recom- 
mending that EPA establish PM2.5 standards (PM App. 
3162). Cf. ATA Br. 6-7, 14-15; APC Br. 12-13. Moreover, 
CASAC concluded that EPA’s Criteria Documents and Staff 
Papers, which recommended a range of NAAQS levels that 
encompassed the levels actually chosen, provided “an ade- 
quate scientific basis for regulatory decisions.” PM App. 
3151, 3162; Ozone App. 235, 236. CASAC followed its tradi- 
tional practice of declining to provide a consensus recom- 
mendation on specific levels for the revised NAAQS, but 
that did not relieve the Administrator of her duty to reach 
decisions on specific NAAQS levels. Once the Administrator 
had concluded that the NAAQS required revision, she— 
unlike CASAC—had to resolve the uncertainties associated 
with those decisions. See PM App. 265-269.7 

Similarly, CASAC’s observation that no “bright line” dis- 
tinguished the alternative levels EPA considered for the re- 
vised ozone NAAQS did not mean that CASAC disagreed 
with EPA’s decision to revise the ozone NAAQS. CASAC’s 
observation reflects the unexceptional fact that, like other 
common air pollutants, ozone lacks a demonstrated “thresh- 
old,” 62 Fed. Reg. at 38,863; i.e., there is no “bright line” be- 
low which scientists have observed a cessation of physiologi- 
cal or biological effects. See American Petroleum Inst., 665 

7 CASAC has typically acknowledged, as it did in those reviews, that 
final NAAQS decisions require the Administrator to make public health 
policy judgments as well as determinations of a strictly scientific nature. 
E.g., PM App. 3164. Since CASAC began advising EPA in the late 1970s, 
it has generally stopped short of offering consensus recommendations on 
specific NAAQS levels and has instead advised on the ranges of levels that 
the science supports. Id. at 266. Nevertheless, CASAC panel members 
may express individual views. For example, the level of protection 
afforded by the revised PM NAAQS falls toward the mid-portion of the 
range of protection afforded by the PM standards recommended by those 
CASAC panel members who chose to express individual views. See id. at 
265-269. 

12 

F.2d at 1185; Lead Indus., 647 F.2d at 1152-1153 & n.43; 
NRDC, 902 F.2d at 969; see Casarett & Doull’s Toxicology: 
The Basic Science of Poisons 19, 79-80 (5th ed. 1996). The 
evidence showed a continuum of risk within the range con- 
sidered, with statistically significant decreases in risk and 
corresponding increases in public health protection for suc- 
cessively more stringent eight-hour ozone standards, 62 Fed. 
Reg. at 38,864. CASAC clearly understood that observed 
phenomenon. Ozone App. 297-298; 62 Fed. Reg. at 38,863.8 

4. EPA and CASAC agreed that additional research into 
the health effects of PM pollution is warranted, but that 
conclusion did not affect the timetable for implementation of 
the revised PM standards. Cf. APC Br. 13. Instead, EPA 
recognized that, for practical reasons, it would take at least 
five years to begin implementation. 62 Fed. Reg. at 38,427- 
38,428. Prior to implementation, a nationwide network of 
PM2.5 monitors has to be installed. Id. at 38,427. In addition, 
because the PM2.5 NAAQS are based on an average of con- 
centrations over three years, a prolonged monitoring effort 
is necessary before the States can begin to propose designa- 
tions of areas as attainment or nonattainment for the PM2.5 
NAAQS. Id. at 38,427-38,428.9 

8 The scientific community’s inability to detect an effects threshold for 
a pollutant does not mean that medically significant effects are actually 
known or thought to occur at very low levels. Indeed, there may be little 
or no evidence supporting that possibility. See, e.g., 62 Fed. Reg. at 
38,676; Casarett & Doull’s Toxicology, supra, at 20 (it is “difficult to estab- 
lish a true ‘no effects’ threshold for any chemical” and “impossible to 
scientifically prove the absence of a threshold, as one can never prove a 
negative”). 

9 Implementation of the revised ozone standard has been delayed due 
to uncertainty arising from the court of appeals’ ruling on EPA’s authority 
to implement the standard, which is under review by this Court in No. 99- 
1257. EPA is also in the process of responding to the court of appeals’ 
remand of the ozone standard for consideration of alleged potential 
“beneficial” effects associated with the presence of ground-level ozone in 
the ambient air. Pet. App. 44a-49a. That aspect of the remand, which 

13 

III. Proceedings Below 

The court of appeals’ decision reaffirms the long-settled 
principle that, “in setting NAAQS under § 109(b) of the 
Clean Air Act, the EPA is not permitted to consider the cost 
of implementing those standards.” Pet. App. 19a. The court 
of appeals has consistently held that EPA must set NAAQS 
based on the “health effects relating to pollutants in the air” 
and not on alleged costs or any other effects that may result 
from implementation of the NAAQS. E.g., NRDC, 902 F.2d 
at 973 (EPA may not consider alleged health effects of 
unemployment petitioners predicted would flow from imple- 
mentation of 1987 PM NAAQS); see Lead Indus., 647 F.2d at 
1148; see also pp. 2-3, supra. 

The court of appeals expressly rejected ATA’s argument 
that it should reconsider its decision in Lead Industries 
because that case was decided prior to Chevron U.S.A. Inc. 

v. NRDC, 467 U.S. 837 (1984). The court explained (Pet. 
App. 19a-20a): 

The Lead Industries decision was made in Chevron step 
one terms, * * * as the post-Chevron progeny of Lead 
Industries have made clear. See NRDC, 902 F.2d at 973 
(“Consideration of costs . . . would be flatly incon- 
sistent with the statute, legislative history and case law 
on this point”); NRDC v. EPA, 824 F.2d 1146, 1158-59 
(D.C. Cir. 1987) (in banc) (“Vinyl Chloride”) (“[S]tatute 
on its face does not allow consideration of technological 
or economic feasibility. . . . Congress considered the 

alternatives and chose to close down sources or even 
industries rather than to allow risks to health.”). 

The court of appeals also rejected the argument that, even 
if, in initially setting NAAQS, EPA cannot consider costs 

EPA has not challenged, has nothing to do with the question posed by 
ATA’s cross-petition, despite ATA’s suggestions to the contrary. See 
ATA Br. 8-9. 

14 

and other effects of implementation, it may do so when 
revising NAAQS. Pet. App. 20a. Finally, the court rejected 
the argument that Congress’s direction that CASAC advise 
EPA on, among other things, “any adverse public health, 
welfare, social, economic, or energy effects which may result 
from various strategies for attainment and maintenance” of 
NAAQS, CAA § 109(d)(2)(C)(iv), 42 U.S.C. 7409(d)(2)(C)(iv), 
signals that EPA should consider those factors in revising 
NAAQS. Pet. App. 21a. Instead, the court of appeals held 
that the Act directs CASAC to provide that advice in light of 
EPA’s separate duty to inform the States on control 
strategies. Ibid. 

SUMMARY OF ARGUMENT 

When Congress enacted Section 109 as part of the Clean 
Air Amendments of 1970, it made a policy choice that EPA 
should set NAAQS at levels requisite to protect public 
health and public welfare. The text, structure, and context 
of Section 109 establish that Congress intended EPA to set 
and revise NAAQS based on the health and welfare effects 
posed by the presence of criteria pollutants in the ambient 
air, and not on the feasibility, costs, or other effects of imple- 
menting the NAAQS. Congress decided that consideration 
of the latter should instead await the process of implementa- 
tion, where those factors will be manifested in concrete 
terms. The Clean Air Act makes clear that the States and 
EPA may give appropriate consideration to such factors at 
various stages of the implementation process. 

Section 109(b)(1) directs EPA to set primary NAAQS at 
levels “requisite” to protect “public health” with “an ade- 
quate margin of safety.” 42 U.S.C. 7409(b)(1). There is no 
ambiguity in that command. EPA must set primary NAAQS 
at levels necessary to ensure that the general population is 
protected, with a reasonable degree of certainty, against the 
risk of adverse health effects. Similarly, Section 109(b)(2) 
directs EPA to set secondary NAAQS at levels “requisite to 

15 

protect the public welfare.” 42 U.S.C. 7409(b)(2). Congress 
spoke directly to the issue of what factors EPA may consider 
when it sets and revises NAAQS. Section 109 states that 
both primary and secondary NAAQS are to be based on the 
air quality criteria that EPA develops under Section 108. 
Section 108, in turn, directs that air quality criteria are to 
“accurately reflect” the “latest scientific knowledge” on the 
effects on public health and public welfare that may be 
associated with “the presence of ” a criteria pollutant “in the 
ambient air.” 42 U.S.C. 7408(a)(2). 

The evolution of the 1970 Act confirms that Congress did 
not intend EPA to base NAAQS on consideration of any 
effects except those posed by the presence of the pollutant in 
the ambient air. Under the Air Quality Act of 1967, the 
States were to set regional ambient air quality standards 
consistent with two pieces of information prepared by the 
Department of Health, Education, and Welfare: air quality 
criteria (defined in the same manner as in the 1970 Act) and 
information regarding pollution control techniques (including 
information on the technological feasibility and cost-effec- 
tiveness of those techniques). When Congress determined in 
1970 that uniform national standards were necessary, it 
retained the requirement that EPA prepare and provide the 
States with information on pollution control techniques, but 
specified that NAAQS should be based on the air quality 
criteria alone. 

The court of appeals’ and EPA’s shared understanding of 
Congress’s intent is consistent with what this Court has 
described as the “technology-forcing” character of the Clean 
Air Act. See Union Elec. Co. v. EPA, 427 U.S. 246, 257 
(1976). Congress understood that setting NAAQS on the 
basis of health and welfare considerations would give indus- 
try an incentive, at the implementation stage, to develop 
innovative and cost-effective control strategies. Congress’s 
actions since 1970 confirm that Congress reserved to itself 
the responsibility for determining whether to adjust the 

16 

NAAQS process in response to industry complaints about 
the costs, technological challenges, or other burdens of 
compliance. Since 1970, Congress has repeatedly been con- 
fronted with evidence of widespread failure to attain 
NAAQS by applicable statutory deadlines. Each time, 
Congress has heard complaints regarding the economic and 
technological feasibility of attaining the standards. Yet, each 
time, Congress has addressed the problem by amending the 
timetable or manner of implementing the NAAQS and not 
by amending the legal standard that governs EPA’s deci- 
sions to set and revise them. 

ATA and its amici offer no persuasive arguments that 
Congress intended NAAQS to be based on feasibility or 
costs of implementation. They are unable to identify any 
statutory provision directing EPA to consider such factors. 
To the contrary, ATA relies on statutory provisions that 
confirm Congress’s intent that EPA and the States consider 
such factors in the NAAQS-implementation process, but not 
in the NAAQS-setting process. The amici supporting ATA 
urge this Court to apply cost-benefit principles in setting 
NAAQS, because, in their view, it would represent a better 
policy choice. But the wisdom and utility of basing measures 
to protect public health on cost-benefit analysis are a subject 
of robust public debate. Congress has chosen not to apply 
that regulatory approach in setting NAAQS, and any deci- 
sion to depart from Congress’s 30-year course should come 
from Congress itself and not from the courts. 

As we explain in our opening brief in the related case, No. 
99-1257, Section 109 of the Clean Air Act does not violate the 
nondelegation doctrine. Moreover, because the meaning of 
Section 109 is clear, the canon that the Court should construe 
ambiguous terms of legislation to avoid reaching constitu- 
tional issues has no place in this case. But even if the court 
of appeals’ analysis of the constitutional issue were correct, 
allowing EPA to consider factors such as economic and 
technological feasibility when it sets and revises NAAQS 

17 

would not resolve or avoid the constitutional issue. ATA’s 
proposed approach would expand, rather than narrow, the 
range of factors EPA must consider. Injecting those factors 
into EPA’s NAAQS decision-making process would not 
provide the “determinate criterion” that the court of appeals 
believed was necessary under the nondelegation doctrine. 

ARGUMENT 

I. CONGRESS HAS DIRECTED EPA TO ESTABLISH 
NAAQS BASED SOLELY ON CONSIDERATION OF 

THE EFFECTS ON PUBLIC HEALTH AND PUBLIC 
WELFARE CAUSED BY THE PRESENCE OF 
CRITERIA POLLUTANTS IN THE AMBIENT AIR 

Congress introduced the NAAQS concept through the 
Clean Air Amendments of 1970. See Train v. NRDC, 421 
U.S. 60, 63-65 (1975); note 2, supra; see also Union Elec., 427 
U.S. at 256-257. Since then, EPA has consistently applied 
Section 109 according to its terms, which require NAAQS to 
be set at levels “requisite to protect” public health and public 
welfare. 42 U.S.C. 7409(b). Congress prescribed that 
NAAQS are to be “based on” the air quality criteria EPA 
develops under Section 108 and that those criteria are to 
provide an accurate scientific assessment of the effects on 
public health and public welfare posed by “the presence of 
[the] pollutant in the ambient air, in varying quantities.” 42 
U.S.C. 7408(a)(2). Accordingly, for the last three decades, 
EPA has understood that, when promulgating NAAQS, it 
may not consider technological feasibility, costs, or other 
alleged effects flowing from implementation of the stan- 
dards. Instead, Congress intended those factors to be con- 
sidered when the States and EPA decide how NAAQS 
should be implemented. 

10 

10 When promulgating the first NAAQS, Administrator Ruckelshaus 
responded to comments questioning their feasibility by stating that the 
CAA “does not permit any factors other than health to be taken into 

18 

ATA asks this Court to overturn, not only 30 years of 
agency practice, but 20 years of court of appeals precedent 
decided in the course of reviewing prior NAAQS. See Pet. 
App 19a; pp. 2-3, supra. That extraordinary action is unwar- 
ranted. Congress has unambiguously indicated its intent 
that NAAQS should be based on scientific evidence 
regarding the health and welfare effects of ambient 
pollution, and not on the technological feasibility, costs, or 
other effects of measures to reduce pollution levels. 

A. The Text And Context Of Sections 108 And 109 Re- 
quire EPA To Set NAAQS Based Solely On The Health 

And Welfare Effects Of The Criteria Pollutants’ Pre- 
sence In The Ambient Air 

The court of appeals and EPA have correctly concluded 
that Congress “has directly spoken to the precise question at 
issue” by specifying precisely what factors EPA is to con- 
sider when it sets and revises NAAQS. Chevron, 467 U.S. at 
842. Section 109(b)(1) of the Act directs EPA to set primary 
NAAQS at a level “requisite to protect the public health” 
and to set secondary NAAQS at a level “requisite to protect 
the public welfare.” See 42 U.S.C. 7409(b)(1) and (2). The 
language of the 1970 Act demonstrates that Congress con- 
ceived of NAAQS as the means to identify, as the first step 
of the CAA regulatory program, the ambient air quality 
standards that are necessary to protect public health and 
public welfare. Neither Section 108, which specifies the 
kinds of factual information upon which NAAQS must be 
based, nor Section 109, which contains the legal test NAAQS 

account in setting the primary standards.” 36 Fed. Reg. 8186 (1971). See 
also, e.g., 62 Fed. Reg. at 38,683-38,688, 38,878-38,883 (detailed response to 
comments on this issue in the PM and ozone rulemakings); Hearings on 
Clean Air Act: Ozone and Particulate Matter Standards Before the Sub- 
comm. on Clean Air, Wetlands, Private Property and Nuclear Safety and 
the Senate Comm. on Env’t and Pub. Works, 105th Cong., 1st Sess. 276, 
282 (1997) (1997 Hearings) (testimony of Administrator Browner). 

19 

must meet, directs EPA to consider economic or technologi- 
cal feasibility, or similar factors, when promulgating 
NAAQS. See Lead Indus., 647 F.2d at 1149; NRDC, 824 
F.2d at 1158. 

Section 109’s command that NAAQS be set at levels 
“requisite” to protect health and welfare unambiguously 
directs that the levels to be set achieve that objective, re- 
gardless of cost or other considerations. 42 U.S.C. 7409(b). 
The plain language of the Act also specifies the factors that 
EPA may consider. Section 109(b)(1) expressly requires 
NAAQS to be “based on” the air quality “criteria” that EPA 
issues under Section 108. 42 U.S.C. 7409(b)(1). Section 
108(a)(2), in turn, limits the kind of information to be 
included in the “criteria” to “the latest scientific knowledge” 
about effects on public health and public welfare “which may 
be expected from the presence of such pollutant in the 
ambient air.” 42 U.S.C. 7408(a)(2); see pp. 5-6, supra. 
Section 108(a)(2) makes no mention whatsoever of effects 
from, or the feasibility of, achieving the NAAQS. Congress 
expressly directed the focus on health and welfare effects 
from the presence of a criteria pollutant in the air and not on 
economic or other effects of measures to remove that pollut- 
ant from the air. 

11 

The context in which Sections 108 and 109 appear also 
confirms that reading. Congress has indicated expressly 
when and to what extent costs and implementation effects 
shall be considered in the NAAQS regulatory process. See 
Union Elec., supra. Those factors can play a role in the 
States’ and EPA’s decisions on how to attain the NAAQS. 
For example, the States are charged with developing SIPs 

11 This Court has recognized that, “[w]hen a statute limits a thing to be 
done in a particular mode, it includes the negative of any other mode.” 
National R.R. Passenger Corp. v. National Ass’n of R.R. Passengers, 414 
U.S. 453, 458 (1974) (quoting Botany Worsted Mills v. United States, 278 
U.S. 282, 289 (1929)). 

20 

governing how NAAQS will be implemented within their 
borders. See CAA § 110, 42 U.S.C. 7410. States may prop- 
erly consider the technological feasibility and costs of 
implementation when formulating the SIPs, and EPA may 
not override those judgments so long as the SIPs will 
achieve attainment of the NAAQS. See Union Elec., 427 
U.S. at 256-269. Union Electric recognizes that the CAA 
does not allow a State to rely on cost and feasibility con- 
siderations to excuse failure to meet the CAA’s deadlines for 
attaining the national health-based standards. Id. at 266-269. 
Nevertheless, the Court concluded that “the [Clean Air 
Amendments of 1970] offer ample opportunity for considera- 
tion of claims of technological and economic infeasibility.” Id. 
at 268. 

12 

In telling contrast to the provisions governing NAAQS 
promulgation, Congress included provisions in the 1970 Act 
expressly directing EPA to consider costs and similar fac- 
tors when making other decisions. See Union Elec., 427 U.S. 
at 257 n.5 (noting latter sections of 1970 Act). 

13 This Court 
“generally presume[s]” that, “[w]here Congress includes 

12 Section 110 of the 1970 Act, which was construed in Union Electric, 
has since been revised, but the principles discussed in that case remain 
fully applicable. See Virginia v. EPA, 108 F.3d 1397, 1407-1409 (D.C. Cir. 
1997); 42 U.S.C. 7410(k). 

13 In Sections 111(a)(1), 202(a)(2) and 231(b) of the 1970 Act, for 
example, Congress directed that EPA consider economic and technological 
feasibility in establishing, respectively, standards of performance for new 
stationary sources of air pollution, standards for new motor vehicles 
(except those subject to statutory standards under Section 202 (b)), and 
aircraft emission standards. See 84 Stat. 1683, 1690, 1704. In Section 
202(b)(5)(A), it provided for one-year suspensions, on feasibility grounds, 
of the statutory motor vehicle standards and for interim standards based 
on the availability and cost of control technology. See id. at 1691. Simi- 
larly, in Sections 110(e)(1), 110(f ), and 112(c)(1) and (2) of the 1970 Act, 
Congress authorized EPA to grant temporary postponements, on feasibil- 
ity grounds, of NAAQS attainment dates and applicable control require- 
ments. See id. at 1682-1683, 1685-1686. 

21 

particular language in one section of a statute but omits it in 
another section of the same Act, * * * Congress acts 
intentionally and purposely in the disparate inclusion or 
exclusion.” Brown v. Gardner, 513 U.S. 115, 120 (1994) 
(quoting Russello v. United States, 464 U.S. 16, 23 (1983)). 
See also United States v. Shabani, 513 U.S. 10, 14 (1994). 

In sum, the plain language of the CAA shows that Con- 
gress itself considered the costs and other effects that might 
flow from implementing the NAAQS and chose to have EPA 
set standards at levels that will protect public health and 
public welfare. As in American Textile Manufacturers In- 
stitute v. Donovan, 452 U.S. 490 (1981), “Congress itself de- 
fined the basic relationship between costs and benefits, by 
placing the ‘benefit’ of [public] health above all other consid- 
erations.” Id. at 509. Neither EPA nor the courts are free to 
overrule that choice. 

B. The Evolution Of The 1970 NAAQS Provisions Con- 
firms That Congress Made A Policy Choice Not To 

Base NAAQS On Consideration Of The Technological 

Feasibility Or Cost-Effectiveness Of Pollution Control 

Measures 

The CAA provisions at issue here are an outgrowth of 
congressional action that began in 1963. See note 2, supra. 
The legislative evolution of those provisions leaves no doubt 
that Congress meant what the plain language says. 

Congress introduced the concept of air quality criteria in 
the Clean Air Act of 1963, Pub. L. No. 88-206, 77 Stat. 392, 
which expanded a federally funded program of air pollution 
research. Section 3(c)(2) of that Act required the Secretary 
of HEW to “compile and publish criteria” when he 
determined that any particular “air pollution agent” was 
“producing effects harmful to the health or welfare of 
persons.” 77 Stat. 395. The 1963 Act defined air quality 
criteria much as the term is defined today: the criteria were 
to “reflec[t] accurately the latest scientific knowledge useful 

22 

in indicating the kind and extent of such effects which may 
be expected from the presence of such air pollution agent (or 
combination of agents) in the air in varying quantities.” Ibid. 
Accord, S. Rep. No. 638, 88th Cong., 1st Sess. 7 (1963). 

The Air Quality Act of 1967, Pub. L. No. 90-148, 81 Stat. 
485, retained the requirement that the Secretary of HEW 
develop air quality criteria. § 107, 81 Stat. 490-491. But the 
Act also introduced into federal law the concept of air quality 
standards. Those standards, however, differed from 
NAAQS in two respects. First, Congress envisioned that 
the States would develop those standards, with federal assis- 
tance, and apply them on a regional basis within each State’s 
borders. Second, Congress encouraged the States to adopt 
regional ambient air quality standards “consistent with” 
both (a) the air quality criteria and (b) information on pollu- 
tion control techniques. § 108(c), 81 Stat. 492-494. 

The 1967 Act preserved the 1963 Act’s conception of air 
quality criteria, providing that they should “accurately 
reflect the latest scientific knowledge” on the health and 
welfare effects “which may be expected from the presence of 
an air pollution agent, or combination of agents in the 
ambient air, in varying quantities.” § 107(b)(2), 81 Stat. 
491. 

14 The 1967 Act went beyond the 1963 Act, however, by 

14 The 1967 Act’s definition of air quality criteria was thus virtually 
identical to the definition carried forward into the 1970 Act. Section 
107(b)(3) of the 1967 Act provided that the criteria “shall include” the 
same information that is required today under Section 108(a)(2)(A) to (C). 
See 42 U.S.C. 7408(a)(2)(A)-(C). See pp. 5-6, supra. The criteria were to 
set forth “an honest appraisal of the available knowledge relating to the 
health and welfare hazards of air pollution,” not influenced by economic 
and technical considerations: 

[Air quality criteria] define the health and welfare considerations that 
must be taken into account in the development of standards and 
regulations. Economic and technical considerations have a place in 
the pattern of control activity but not in the development of criteria. 

H.R. Rep. No. 728, 90th Cong., 1st Sess. 16 (1967) (emphasis added); 
accord S. Rep. No. 403, 90th Cong., 1st Sess. 26-27 (1967). 

23 

directing the Secretary of HEW to provide the States with a 
separate body of information on recommended pollution con- 
trol techniques, including information on the “economic fea- 
sibility” and “cost-effectiveness” of the control techniques. 
§ 107(c), 81 Stat. 491; see H.R. Rep. No. 728, 90th Cong., 1st 
Sess. 9-13 (1967). 

The 1967 Act directed the Secretary to provide informa- 
tion on both air quality criteria and control techniques in 
order to create incentives for States to develop their own air 
quality standards that were “at a minimum adequate for the 
protection of public health and which can be achieved 
through the application of feasible control techniques.” H.R. 
Rep. No. 728, supra, at 18; see also S. Rep. No. 403, 90th 
Cong., 1st Sess. 26, 28 (1967) (standards would be “influenced 
not only by a concern for the protection of health or welfare, 
but also by economic, social, and technological 
considerations”). Congress accordingly provided that those 
standards would “be the air quality standards applicable to 
such State” if the Secretary of HEW determined that the 
State standards were “consistent with the air quality criteria 
and recommended control techniques issued pursuant to 
section 107.” § 108(c), 81 Stat. 492 (emphasis added). 

Three years later, Congress determined that the “re- 
sponse of the States * * * was disappointing,” and it en- 
acted the 1970 Clean Air Amendments to “sharply increase[] 
federal authority.” Train, 421 U.S. at 64-65. Congress di- 
rected EPA to develop nationally uniform federal stan- 
dards—the NAAQS—and it deliberately narrowed the basis 
for setting the standards. Congress retained the distinction 
between air quality criteria and information on pollution 
control techniques that it had made in the 1967 Act. See 42 
U.S.C. 7408(a)(2) (defining air quality criteria); 42 U.S.C. 
7408(b) (requiring issuance of information on air pollution 
control techniques). Congress specified, however, that the 
NAAQS would be “based on” the “criteria” alone. 42 U.S.C. 
7409(b)(1) and (2). Congress consciously provided for consid- 

24 

eration of the feasibility and effects of implementing the 
standards during later stages in the regulatory process. See 
pp. 20-21, supra. Those changes clearly reflected a 
deliberate legislative decision to narrow the basis on which 
EPA, as HEW’s successor, would establish the national am- 
bient air quality standards. 

15 

Viewed in historical context, Congress’s intent is thus 
clear. Since 1963, Congress has conceived of air quality 
criteria as scientific information on the effects on public 
health and public welfare posed by the presence of a 
pollutant in the ambient air. In 1967, Congress experi- 
mented with a federal program in which States would set 
regional air quality standards based on air quality criteria 
and information regarding the economic and technological 
feasibility of measures to reduce pollution. In 1970, Con- 
gress concluded that the experiment was a failure and 
replaced it with a program in which EPA would set national 
air quality standards based on air quality criteria alone, see 
Train, 421 U.S. at 63-65, while preserving the ability of EPA 

15 In hearings that preceded the 1970 Act, the HEW official responsible 
for implementation of the 1967 Act testified that the intent of the 1967 Act 
was to achieve regional air quality standards that were sufficient to 
protect health, but that the regional standards that had been adopted in 
fact “reflect[ed] the desired socio-economic status of those particular 
regions.” Hearings on Air Pollution Before the Subcomm. on Air and 
Water Pollution of the Senate Comm. on Pub. Works, 91st Cong., 2d Sess. 
Pt. 4, at 1488, 1489 (1970), (Air Pollution Hearings) reprinted in 2 Staff of 
Senate Comm. on Pub. Works, 93d Cong., 2d Sess., A Legislative History 
of the Clean Air Amendments of 1970 at 1183-1184 (Comm. Print 1974) 
(hereinafter 1970 Leg. Hist.). He therefore advocated national standards 
“to be sure * * * throughout the Nation, that no area can be any worse 
than a level of air quality that will be protective of health.” Id. at 1184. 
Congress adopted that approach. Senator Muskie, the primary architect 
of the Clean Air Amendments of 1970, explained that changes in the law 
were necessary precisely because experience under the 1967 Act had 
revealed that economic and technological considerations had been used “to 
compromise the public health.” See 116 Cong. Rec. 32,901 (1970) (1 1970 
Leg. Hist. 226-227). 

25 

and the States to consider costs and feasibility in the imple- 
mentation stage of the regulatory process, where specific 
emission limitations and control requirements are imposed, 
see Union Elec., 427 U.S. at 266-269. 

C. Congress’s Direction That EPA Set NAAQS Based 

Solely On Health And Welfare Effects Is Consistent 
With The Clean Air Act’s “Technology-Forcing” 
Objectives 

As this Court has recognized, Congress’s decision to set 
NAAQS at levels “requisite” to protect public health and 
public welfare—and to postpone questions of feasibility to 
the implementation stage—rests on a deliberate policy judg- 
ment that the NAAQS would have a “technology-forcing 
character.” Union Elec., 427 U.S. at 257; Train, 421 U.S. at 

91. Congress knew that setting the NAAQS based on health 
and welfare considerations could, at the implementation 
stage, “force regulated sources to develop pollution control 
devices that might at the time appear to be economically or 
technologically infeasible.” Union Elec., 427 U.S. at 257. It 
also knew that technology forcing “necessarily entails cer- 
tain risks.” Id. at 269. “Congress considered those risks in 
passing the 1970 Amendments and decided that the dangers 
posed by uncontrolled air pollution made them worth 
taking.” Ibid. 

16 

The Court’s understanding of the CAA’s “technology- 
forcing character” is well founded. See NRDC, 824 F.2d at 
1158; Lead Indus., 647 F.2d at 1149. For example, the 
Senate Report accompanying the 1970 Amendments recog- 

16 Since 1970, industry has largely met the challenge of technological 
innovation with the result that, historically, EPA has overestimated, at 
the time of promulgation, the cost of attaining NAAQS. PM App. 3471- 
3473; see also E. Goodstein & H. Hodges, Polluted Data, The American 
Prospect, No. 35, at 64-69 (Nov.-Dec. 1997) (“In every case we have found 
where researchers have calculated actual regulatory costs and then 
compared them to ex ante estimates, the estimate exceeded the actual cost 
by at least 30 percent and generally by more than 100 percent.”). 

26 

nized that attaining the new standards would “require major 
investments in new technology and new processes” and that 
some facilities might even close. S. Rep. No. 1196, 91st 
Cong., 2d Sess. 2-3 (1970) (1 1970 Leg. Hist. 402-403). 
Nevertheless, the Report emphasized (ibid.): 

In the Committee discussions, considerable concern was 
expressed regarding the use of the concept of technical 
feasibility as the basis of ambient air standards. The 
Committee determined that 1) the health of people is 
more important than the question of whether the early 
achievement of ambient air quality standards protective 
of health is technically feasible; and, 2) the growth of 
pollution load in many areas, even with application of 
available technology, would still be deleterious to public 
health. 

Therefore, the Committee determined that existing 
sources of pollutants either should meet the standard of 
the law or be closed down * * *. 

Senator Muskie, the Act’s principal sponsor, while ac- 
knowledging the need to provide States with information on 
the economics and feasibility of pollution control technolo- 
gies, “reemphasize[d] that the concept of this bill as it relates 
to national ambient air quality standards * * * is not keyed 
to any condition that the Secretary finds technically and 
economically feasible.” 116 Cong. Rec. 33,099 (1970) (1 1970 
Leg. Hist. 342). Instead, “the concept is of public health, and 
the standards are uncompromiseble in that connection.” 
Ibid. See also id. at 32,902 (1 1970 Leg. Hist. 227). 

17 

17 Senator Muskie’s understanding was shared by others. For example, 
Senator Cooper stated: 

[T]he philosophy of the bill abandons the old assumption of requiring 
the use of only whatever technology is already proven and at hand 
and of permitting pollution to continue when it is not economically 
feasible to control it. The bill proceeds instead to set out what is to be 

27 

The CAA is “technology forcing” precisely because it dic- 
tates that NAAQS shall be based on public health and public 
welfare considerations and not on supposed “feasibility” 
constraints. The CAA was designed to stimulate the regu- 
lated community to find innovative ways, at the implementa- 
tion stage, to meet the NAAQS. See 116 Cong. Rec. 32,902 
(1970) (1 1970 Leg. Hist. 227) (Sen. Muskie) (“Our responsi- 
bility in Congress is to say that the requirements of this bill 
are what the health of the Nation requires, and to challenge 
polluters to meet them.”). Congress clearly understood that 
the feasibility, costs, and other effects of implementing 
measures to attain the NAAQS would be considered only 
following promulgation of NAAQS, when the States and 
EPA could consider those factors in deciding how to attain 
the standards. See 116 Cong. Rec. at 32,918 (1 1970 Leg. 
Hist. 259-260) (Sen. Cooper). 

D. Congress’s Actions Since 1970 Confirm That EPA Has 

Correctly Discerned Congressional Intent 

As this Court recognized in Union Electric, Congress 
ensured that considerations of economic and technological 
feasibility could be factored into the implementation process. 
427 U.S. at 266-269. Congress also retained the prerogative 
of deciding—after the States and affected parties had 
explored both conventional and innovative control measures 
under the technology-forcing pressure of the Act—whether 
and how to alter the statutory scheme if the NAAQS could 
not realistically be attained within the prescribed time 
frames. See Lead Indus., 647 F.2d at 1150; Pet. App. 68a-69a 

achieved, and places its reliance on a great effort to develop technol- 
ogy, to train and put to work the manpower to accomplish that 
purpose, and it assumes a readiness by industry and the people or the 
country to pay the costs of pollution control. 

116 Cong. Rec. at 32,919 (1 1970 Leg. Hist. 262); see also S. Rep. No. 1196, 
supra, at 9 (1 1970 Leg. Hist. 409) (providing control techniques 
information to the States should not “lock in existing technology”). 

28 

(Tatel, J., dissenting). Congress has since exercised that 
prerogative a number of times. In doing so, it has confirmed 
that EPA is to set and revise NAAQS based on health and 
welfare considerations, and not on the effects of implement- 
ing the standards. 

18 

For example, when Congress amended the Act in 1977, it 
addressed the difficulty that many areas had experienced 
with attaining the NAAQS. But Congress did so by chang- 
ing how the NAAQS are implemented rather than changing 
how NAAQS are set. See 62 Fed. Reg. at 38,685. Congress 
was well aware that some areas of the country had been 
unable to attain some of the NAAQS. See, e.g., H.R. Rep. 
No. 294, 95th Cong., 1st Sess. 207-217 (1977). Congress was 
also aware that significant scientific uncertainties are inher- 
ent in setting health-based standards. See id. at 43-51, 110- 
112. Furthermore, EPA had emphasized, in a memorandum 
responding to criticism in oversight hearings, that the origi- 
nal NAAQS were set without considering costs or feasibil- 
ity, 

19 and industrial groups had urged Congress specifically 
to revise Section 109 to allow consideration of “social and 
economic factors” in setting NAAQS. 

20 In response, Con- 
gress made significant changes in the CAA’s provisions for 

18 Indeed, Congress had anticipated that it would conduct continuing 
oversight over disputes respecting economic and technological feasibility. 
See, e.g., 
Air Pollution Hearings 1491 (2 1970 Leg. Hist. 1186) (Sen. 

Baker); 116 Cong. Rec. at 32,905 (1 1970 Leg. Hist. 236) (Sen. Muskie). 
Congress has been vitally involved in both “setting up the machinery on 
the one hand and making it work on the other.” Air Pollution Hearings 
1491 (2 1970 Leg. Hist. 1186) (Sen. Baker). 

19 Hearings on Implementation of the Clean Air Amendments of 1970 
Before the Subcomm. on Air and Water Pollution of the Senate Comm. on 
Pub. Works, 92d Cong., 2d Sess., Pt. 1, at 311, 312 (1972) (memorandum 
from Robert L. Baum, Assistant General Counsel, to the Administrator). 

20 See, e.g., Hearings on the Clean Air Amendments of 1977 Before the 
Subcomm. on Envtl. Pollution of the Senate Comm. on Env’t and Pub. 
Works, 95th Cong., 1st Sess., Pt. 2, at 1077, 1085 (1977) (Manufacturing 
Chemists Ass’n and Dow Chemical Company). 

29 

implementing NAAQS, including, for example, an extension 
of the deadline for attaining the ozone NAAQS. See 91 Stat. 
746-747. It also amended Section 109 of the Act to require 
periodic review and revision of NAAQS and to establish 
CASAC. See 91 Stat. 691. Congress made no change, 
however, in the substantive criteria for setting and revising 
NAAQS. See 62 Fed. Reg. at 38,685 & n.66 (describing the 
1977 Amendments). 

Congress also exercised its prerogative, several times 
during the 1980s, to adjust the NAAQS implementation 
scheme based on considerations of economic and technologi- 
cal feasibility. In 1981, it enacted legislation that gave the 
steel industry three additional years to meet the NAAQS 
attainment date of 1982 established by the 1977 Act. See 
Steel Industry Compliance Extension Act of 1981, Pub. L. 
No. 97-23, 95 Stat. 139. In 1983, when 218 areas had failed to 
meet the 1982 attainment date and could thus be sanctioned, 
Congress enacted a one-year moratorium on sanctions. See 
Department of Housing and Urban Development–Indepen- 
dent Agencies Appropriation Act, 1983, Pub. L. No. 98-45, 97 
Stat. 219. In addition, Congress extended the time for 
compliance with the carbon monoxide and ozone NAAQS 
from December 31, 1987, to August 31, 1988. See H.R. J. 
Res. 395, 100th Cong., 1st Sess. (1987). 

In 1990, Congress again made adjustments in the scheme 
for implementing NAAQS. The Clean Air Act Amendments 
of 1990 were an ambitious undertaking that almost doubled 
the size of the CAA in the United States Code. Congress 
responded, through detailed amendments, to problems that 
areas of the country continued to encounter in attaining the 
NAAQS. But Congress once again did so by adjusting the 
implementation scheme rather than by changing the way 
that NAAQS are set. See, e.g., CAA §§ 181-192, 42 U.S.C. 
7511-7514a (1994 & Supp. IV 1998). The 1990 Amendments 
are particularly instructive because Congress acted with full 

30 

knowledge of how NAAQS had been promulgated over the 
previous 20 years. 

First, Congress had before it the final report of the 
National Commission on Air Quality (NCAQ), prepared 
pursuant to Section 323 of the 1977 Act, which charged the 
NCAQ with examining, among other things, “the economic, 
technology, and environmental consequences of achieving or 
not achieving” the Act’s goals. 

Pub. L. No. 95-95, § 323(a), 

91 Stat. 785. The NCAQ report discussed the long-standing 
principle that NAAQS are set based solely on health and 
welfare considerations and recommended that this principle 
remain unchanged. 

21 Second, Congress indicated its aware- 
ness of the court of appeals’ decision in Vinyl Chloride, 
which had expressly reaffirmed that EPA may not take into 
account economic or technological feasibility when setting 
NAAQS (824 F.2d at 1158-1159), by enacting amendments 
addressing other aspects of the en banc court’s decision. See 
104 Stat. 2531 (extensively amending Section 112 of the 
CAA, 42 U.S.C. 7412, governing the regulation of especially 
hazardous pollutants). Third, the House and Senate Reports 
accompanying the 1990 Amendments expressly reflected the 
understanding that primary NAAQS are to be “set at a level 
that ‘protects the public health with an adequate margin of 
safety,’ without regard to the economic or technical 
feasibility of attainment.” H.R. Rep. No. 490, 101st Cong., 

21 National Comm’n on Air Quality Report 7, 55, 70 (Mar. 1981). The 
NCAQ report was the subject of joint hearings in 1981 and an important 
source for Congress’s 1990 deliberations. See, e.g., Joint Hearing on 
Reports of the Nat’l Comm’n on Air Quality and the Nat’l Academy of 
Sciences Before the Senate Comm. on Env’t and Pub. Works and the 
Subcomm. on Health and the Env’t of the House Comm. on Energy and 
Commerce, 97th Cong., lst Sess. 2-3 (1981) (remarks of Senators Stafford 
and Chafee); H.R. Rep. No. 490, 101st Cong., 2d Sess., Pt. 1, at 213 (1990). 

31 

2d Sess., Pt. 1, at 145 (1990) (emphasis added); accord S. Rep. 
No. 228, 101st Cong., 1st Sess. 5 (1989). 

22 

This Court recently recognized that, when Congress en- 
acts legislation “against the backdrop” of an agency’s “con- 
sistent and repeated statements” of the agency’s authority, 
the legislation may effectively ratify the agency’s position. 
See FDA v. Brown & Williamson Tobacco Corp., 120 S. Ct. 
1291, 1313 (2000). 

23 This case, however, does not depend on 
an inference that Congress ratified EPA’s interpretation of 
its authority. Congress has revisited the CAA numerous 
times over the past 30 years, and it has consistently adhered 
to its plainly stated original intention—long followed by 
EPA and the court of appeals—that NAAQS are to be set at 
levels requisite to protect public health and public welfare, 
without regard to the economic or technological feasibility of 
implementing those standards. Congress has itself thus 
directly and repeatedly reaffirmed that it meant what it 
originally said. See Chevron, 467 U.S. at 842-843 (“[i]f the 
intent of Congress is clear, that is the end of the matter”). 

24 

22 After enactment of the 1977 Clean Air Act Amendments, various 
parties had continued to urge Congress to amend Section 109 to allow con- 
sideration of compliance costs. See, e.g., Hearings on Clean Air Act 
Oversight Before the Senate Comm. on Env’t and Pub. Works, 97th Cong., 
lst Sess., Pt. 3, at 199, 238 (1981); Hearings on Health Standards for Air 
Pollutants Before the Subcomm. on Health and the Env’t of the House 
Comm. on Energy and Commerce, 97th Cong., 1st Sess. 86-87, 214 (1981). 
Congress again declined to do so. 

23 See also Bob Jones Univ. v. United States, 461 U.S. 574, 600-602 
(1983); Lorillard v. Pons, 434 U.S. 575, 581 (1978); NLRB v. Bell Aero- 
space Co., 416 U.S. 267, 274 (1974) (according “great weight” to long- 
standing interpretation “where Congress has re-enacted the statute 
without pertinent change”); Red Lion Broad. Co. v. FCC, 395 U.S. 367, 
381 (1969). 

24 Even if there were any ambiguity in Congress’s pronouncements, 
EPA’s interpretation of the Act would be a reasonable one entitled to 
deference. See Chevron, 467 U.S. at 843-845. 

32 

II. ATA IS MISTAKEN IN INSISTING THAT THE 

CLEAN AIR ACT REQUIRES EPA TO CONSIDER 
NON-HEALTH FACTORS IN SETTING PRIMARY 
NAAQS 

Notwithstanding the foregoing, ATA and its supporters 
mistakenly argue that the CAA’s “text, structure, and pur- 
pose show that EPA must consider non-health factors in 
setting NAAQS.” ATA Br. 32-47. They also argue that 
EPA should, as a matter of policy, employ cost-benefit 
analysis in setting NAAQS. See, e.g., ATA Br. 35-36; APC 
Br. 30-31; AEI-Brookings Inst. Amici Br. This Court’s 
responsibility, however, is to determine Congress’s intent. 
Congress has deliberately rejected the cost-benefit approach 
that ATA and its supporters espouse, and Congress’s deter- 
mination is dispositive. 

A. ATA’s Supposed “Trilemma” Does Not Exist 

ATA argues at the outset that setting primary NAAQS 
for non-threshold pollutants based on health considerations 
creates a “trilemma” in which EPA has only three regula- 
tory options: (1) to set NAAQS at zero; (2) to set NAAQS at 
a non-zero level that cannot survive review under the 
arbitrary or capricious standard; or (3) to reject the court of 
appeals’ ruling and employ cost-benefit analysis to set and 
revise NAAQS. ATA Br. 25, 29-30. ATA’s supposed 
trilemma rests on a false trichotomy. 

ATA’s first prong presents no real difficulty. EPA has 
never encountered (and does not expect ever to encounter) 
the theoretical situation in which complete elimination of a 
criteria pollutant—including a so-called non-threshold 
pollutant—would be “requisite” to protect public health or 
public welfare. 42 U.S.C. 7409(b). ATA overlooks that 
scientists characterize a pollutant as “non-threshold” if they 
have not been able to identify a level below which there is no 
risk that exposure will cause a physiological or biological 
effect, however small or fleeting. See, e.g., 61 Fed. Reg. at 

33 

65,727; Casarett & Doull’s Toxicology, supra, at 19 (describ- 
ing a “threshold” as “[a] dose below which the probability of 
an individual responding is zero”). Characterizing a pollut- 
ant as “non-threshold” does not mean that any group of 
persons, including sensitive persons, will actually suffer 
adverse health effects if exposed to a non-zero concentration 
of that pollutant. See, e.g., 61 Fed. Reg. at 65,721-65,723; see 
also Casarett’s & Doull’s Toxicology, supra, at 80 (distin- 
guishing between, e.g., the “no observed effect level” and the 
“no observed adverse effect level”). Accordingly, EPA’s 
characterization of a pollutant as “non-threshold” does not 
require EPA to set the NAAQS for that pollutant at zero. 

ATA’s second prong also presents no real problem. The 
CAA requires EPA to set primary NAAQS at levels that 
protect against “adverse” health effects—not every physio- 
logical effect that can be detected—and it requires EPA to 
protect the health of sensitive population groups rather than 
that of every sensitive individual. 42 U.S.C. 7409(b)(1); S. 
Rep. No. 1196, supra, at 10 (1 1970 Leg. Hist. 410). More- 
over, EPA has consistently adhered to the principle that 
NAAQS must provide “a reasonable degree of protection 

* * * against hazards which research has not yet 
identified.” Ibid. (emphasis added). See Lead Indus., 647 
F.2d at 1150. EPA therefore sets primary NAAQS at levels 
that provide protection from medically significant risks and 
not at levels that protect against any and all risks, or any and 
all effects. See, e.g., id. at 1144, 1155 n.51. 

25 ATA is 
accordingly mistaken in suggesting (ATA Br. 25, 29-30) that 
setting a non-zero NAAQS for a non-threshold pollutant is 
necessarily arbitrary and capricious. Indeed, EPA has 

25 ATA is wrong in contending (ATA Br. 30) that the court of appeals’ 
decision in Lead Industries bars EPA from engaging in a “systematic 
weighing of pros and cons” when promulgating primary NAAQS. That 
decision recognized that EPA must weigh factors that are relevant in 
deciding what level of protection is “requisite” to protect public health and 
public welfare. See 647 F.2d at 1146-1147. 

34 

properly established non-zero NAAQS for pollutants that 
are or may be non-threshold pollutants, and the court of 
appeals, applying the familiar arbitrary or capricious 
standard, has repeatedly rejected judicial challenges to those 
NAAQS. 

26 

The only truly problematic option is the third prong of 
ATA’s supposed trilemma. ATA’s suggestion that EPA 
should ignore Lead Industries and set NAAQS on the basis 
of cost-benefit analysis (ATA Br. 30, 32) would require EPA 
to ignore 30 years of agency practice, 20 years of court of 
appeals precedent, and—most importantly—Congress’s 
clearly stated contrary intent. See A. Scalia, Responsibili- 
ties of Regulatory Agencies Under Environmental Laws, 24 
Hous. L. Rev. 97, 102 (1987) (noting that “primary [NAAQS] 
are to be established not in light of what is ‘feasible’ or 
‘reasonable’ (a formulation that would enable counter- 
balancing 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’ ”). 

26 NRDC, 902 F.2d 962 (1987 PM NAAQS); American Petroleum Inst., 
665 F.2d 1176 (1979 ozone NAAQS); Lead Indus., 647 F.2d 1130 (lead 
NAAQS). ATA’s assertion that a non-zero NAAQS must be arbitrary 
(ATA Br. 31) also misconceives the arbitrary or capricious standard of 
judicial review. Under that standard, “a reviewing court may not set 
aside an agency rule that is rational, based on consideration of the relevant 
factors, and within the scope of the authority delegated to the agency by 
the statute.” Motor Vehicle Mfrs. Ass’n v. State Farm Mut. Auto. Ins. Co. 
463 U.S. 29, 42 (1983). When a court reviews a NAAQS, it accordingly 
examines whether EPA has set an air quality standard that is reasonable 
in light of the pertinent record evidence. See NRDC, 902 F.2d at 972; 
American Petroleum Inst., 665 F.2d at 1187; see also 99-1257 Pet. Br. 26- 

31. The court of appeals below did not reach the question whether EPA’s 
revised PM and ozone rules satisfy that standard. Pet. App. 4a-5a. But as 
we have explained in the companion case, EPA’s revisions are plainly 
rational and rest on comprehensive analyses of the evidence respecting 
the public health and public welfare effects of PM and ozone. See 99-1257 
Pet. Br. 8-15, 31-34 (describing EPA’s PM and ozone rulemakings. 

35 

B. The Clean Air Act’s Express Language Refutes ATA’s 
View Of EPA’s Obligations In Promulgating NAAQS 

ATA and its supporters argue that the CAA requires 
EPA to consider “non-health factors,” including “compliance 
costs,” in promulgating NAAQS. See, e.g., ATA Br. 33, 34; 
APC Br. 32. The statutory language on which they rely, 
however, does not support their contentions. Indeed, as we 
show below, their arguments depend heavily on extrapolat- 
ing from isolated phrases, giving words unnatural defini- 
tions, and overlooking context. That approach is fundamen- 
tally unsound: statutes should not “be read as a series of un- 
related and isolated provisions.” Gustafson v. Alloyd Co., 
513 U.S. 561, 570 (1995). “Statutory construction is not an 
exercise in picking apart a complex statute and piecing the 
parts back together in a manner to effect a particular end.” 
Michigan v. EPA, 213 F.3d 663, 673 (D.C. Cir. 2000). 

1. Section 109(b)(1): The term “public health.” ATA 
contends that EPA must take compliance costs into account 
when setting primary NAAQS at a level “requisite to pro- 
tect the public health” (CAA § 109(b)(1), 42 U.S.C. 
7409(b)(1)) because the term “public health” “has long con- 
noted a sensitivity to comparative costs and benefits.” ATA 
Br. 36; see also APC Br. 26; Ohio Br. 12. ATA derives that 
conclusion by extrapolating from a definition of the vocation 
of “public health” that appeared in a 1951 book entitled “The 
Cost of Sickness and the Price of Health.” ATA Br. 34. That 
book defined “public health” as “the science and the art of 
preventing disease, prolonging life, and promoting physical 
health and efficiency” through various means. See id. at 34- 
36; APC Br. 26 n.57. A definition of “public health” drawn 
from the vocational context, however, is inapt in the context 
presented here. Congress surely did not intend that 
NAAQS would be set at a level “requisite to protect [the sci- 
ence and art of preventing disease]” (42 U.S.C. 7409(b)(1)). 
See, e.g., Textron Lycoming Reciprocating Engine Div. v. 

36 

Automobile Workers, 523 U.S. 653, 657 (1998)(“the meaning 
of a word cannot be determined in isolation, but must be 
drawn from the context in which it is used”). 

27 

The phrase “public health” should be given its ordinary or 
natural dictionary meaning in light of the context in which it 
is used. See, e.g., Walters v. Metropolitan Educ. Enters., 
Inc., 519 U.S. 202, 207 (1997). Viewed in that light, Section 
109(b)(2) clearly directs that EPA must set NAAQS at levels 
requisite to protect the general population, or identifiable 
groups within communities, from medically significant 
effects. 

28 Nothing in the language of Section 109(b)(1) 
directs—or even allows—EPA to set NAAQS at levels in- 
adequate to protect the public from adverse medical effects 
because of the costs of compliance or other effects of 
implementation. See Scalia, supra, 24 Hous. L. Rev. at 102. 
See, e.g., Bates v. United States, 522 U.S. 23, 29 (1997) (“[w]e 

27 ATA’s reference to the vocation of public health is pertinent in this 
limited sense: Numerous public health professional associations com- 
mented favorably on EPA’s proposed health-based PM and ozone NAAQS 
revisions. For example, the American Public Health Association (APHA), 
the oldest and largest such association, endorsed “the process by which 
the standards were developed” as “public health practice at its best— 
good science, good judgment, and active public participation.” Letter from 
M. Akhter, M.D., M.P.H.., Executive Director, APHA, to C. Browner, 
Administrator, EPA, Docket IV-G-1826, at 1 (June 27, 1997). 

28 The word “public,” in the context presented here, means “of, relating 
to, or affecting the people as an organized community.” Webster’s Third 
New International Dictionary 1836 (1976). Congress used that word to 
make clear that NAAQS protect the “health” of the general population, or 
of population groups, rather than of any specific individual. The word 
“health,” in the context presented here, means “the state of being sound in 
body or mind.” Id. at 1043. Congress used that term to denote the 
absence of medically significant adverse reactions to pollution exposure, in 
contrast to inconsequential physiological responses that would not impair 
the “soundness” of body or mind. Consistent with those definitions, the 
phrase “public health” means the “health of the community at large.” 
Black’s Law Dictionary 724 (7th ed. 1999). 

37 

ordinarily resist reading words or elements into a statute 
that do not appear on its face”). 

2. Section 109(b)(2): The term “public welfare.” ATA 
also argues that the CAA’s references to protecting “public 
welfare” must include protecting industry from “compliance 
costs.” ATA Br. 37-39. Section 109(b)(2) expressly directs 
EPA, however, to set secondary NAAQS for criteria pollut- 
ants at a level “requisite to protect the public welfare from 
any known or anticipated adverse effects associated with the 
presence of such air pollutant in the ambient air.” 42 U.S.C. 
7409(b)(2) (emphasis added). Congress plainly indicated that 
the public welfare effects of concern are those posed by 
exposure to air pollutants rather than the effects of mea- 
sures to implement the NAAQS. 

29 

3. Section 108(a)(2): The contents of air quality criteria. 
Similarly, ATA and others contend that, in prescribing the 
content of air quality criteria in Section 108(a)(2), Congress 
did not preclude other types of information. E.g., ATA Br. 
38-40; Ohio Br. 11. Section 108(a)(2) specifies, however, that 
air quality criteria shall provide information on “all 
identifiable effects on public health or welfare which may be 

29 The CAA’s definition of “effects on welfare” further reinforces that 
conclusion. Section 302(h) states that reference to “effects on welfare” 
includes, but is not limited to, “effects on soils, water, crops, vegetation, 
manmade materials, animals, wildlife, weather, visibility, and climate, 
damage to and deterioration of property, and hazards to transportation, as 
well as effects on economic values and on personal comfort and well-being, 
whether caused by transformation, conversion, or combination with other 
air pollution.” 
42 U.S.C. 7602(h) (emphasis added). Although that defini- 
tion includes “effects on economic values,” the context plainly shows that 
the “effects” of concern are those caused by the pollution itself. See Lead 
Indus., 647 F.2d at 1148 n.36 (definition of “welfare” does not include the 
cost of compliance with NAAQS; it “only refers to the economic costs of 
pollution”); see generally Babbitt v. Sweet Home Chapter of Communities, 
515 U.S. 687, 702 (1995) (“a word ‘gathers meaning from the words around 
it’ ”); Jarecki v. G.D. Searle & Co., 367 U.S. 303, 307 (1961) (the canon of 
noscitur a sociis is applied to avoid giving “unintended breadth to the 
Acts of Congress”). 

38 

expected from the presence of such pollutant in the ambient 
air.” 42 U.S.C. 7408(a)(2) (emphasis added). Congress 
plainly indicated in Section 108(a)(2), that the effects of 
concern are those posed by the presence of the pollutant in 
the ambient air rather than compliance costs and other 
effects that arise from implementing the NAAQS. 

30 

4. Section 108(b)(1): Dissemination of pollution control 
information to States. ATA and others contend that Section 
108(b)(1)’s direction that EPA provide States with infor- 
mation on air pollution control techniques, 42 U.S.C. 
7408(b)(1), indicates that Congress intended EPA to con- 
sider those matters in promulgating NAAQS. ATA Br. 40; 
APC Br. 38-39. But, as we have explained, Congress had 
directed HEW to provide the States with pollution control 
information under the 1967 Act, which called on States to 
develop regional air quality standards. See pp. 22-23, supra. 
Congress directed EPA to continue to provide States with 
that information under the 1970 Act, but expressly sepa- 
rated it from the newly created NAAQS promulgation pro- 
cess. Congress did so precisely because it decided that 
NAAQS should be health-based standards. See pp. 23-24, 
supra. Congress has nevertheless continued to ensure that 

30 ATA and Ohio emphasize the last sentence of Section 108(a)(2), 
which specifies air quality criteria shall include, “to the extent practica- 
ble,” information on (A) variable factors (such as atmospheric conditions) 
which may alter the effects of a pollutant; (B) pollutants that may interact 
to produce adverse effects; and (C) any known or anticipated adverse 
effects on welfare. 42 U.S.C. 7408(a)(2). Those three categories of 
information, however, are all encompassed within, and limited by, Section 
108(a)(2)’s general directive that “air quality criteria” shall provide 
information on the health and welfare effects posed by “the presence of 
such pollutant in the ambient air.” 42 U.S.C. 7408(a)(2). Section 
108(a)(2)’s additional directive to include the three specific types of 
information “to the extent practicable” does not expand the content of the 
criteria, but instead further refines it. 42 U.S.C. 7408(a)(2). See pp. 5-6, 
21-22 and note 14, supra. 

39 

States have pollution control information so that the States 
can be prepared to implement the NAAQS. See ibid. 

5. Section 109(d)(2): CASAC’s advice to EPA on effects 
of implementation. ATA and others also contend that Sec- 
tion 109(d)(2)’s direction that CASAC provide EPA with 
advice on implementation effects, 42 U.S.C. 7409(d)(2)(C)(iv), 
indicates that Congress intended EPA to consider those 
matters in promulgating NAAQS. ATA Br. 41; APC Br. 41; 
Hatch Amicus Br. 22. The text of Section 109(d)(2), read as a 
whole, indicates that this is not so. Section 109(d)(2)(B) 
directs that CASAC periodically review the air quality 
criteria and NAAQS and make recommendations to the 
Administrator on new or revised standards or criteria. 42 
U.S.C. 7409(d)(2)(B). Section 109(d)(2)(C) further provides 
that CASAC “shall also” advise the Administrator on vari- 
ous matters, including “any adverse public health, welfare, 
social, economic, or energy effects which may result from 
various strategies for attainment and maintenance of 
[NAAQS].” 42 U.S.C. 7409(d)(2)(C) (emphasis added). As 
the CAA’s text indicates, CASAC’s advice on imple- 
mentation effects under Section 109(d)(2)(C) is in addition to, 
and separate from, any recommendations on criteria and 
NAAQS that CASAC provides under Section 109(d)(2)(B). 
See Pet. App. 21a. 

31 

31 Congress plainly drew a distinction between effects that are relevant 
for purposes of promulgating a NAAQS—viz., effects associated with “the 
presence of [a] pollutant in the ambient air” (42 U.S.C. 7408(a)(2))—and 
effects that are the subject of CASAC’s advice-providing role under 
Section 109(d)(2)(C)—viz., effects “which may result from various strate- 
gies for attainment” (42 U.S.C. 7409(d)(2)(C)(iv)). If Congress had not 
wished to draw that distinction, it would not have employed the distinc- 
tively different language. Indeed, the House Report that described the 
purpose of Section 109(d)(2)(C)(iv) suggests that CASAC’s advice under 
that provision plays a limited role, even in the implementation process. It 
states that the information is not “to be used as a basis for the Administra- 
tor to disapprove any [SIP],” but “may be of interest and assistance to the 

40 

6. Section 109(b)(1): Allowance for an adequate margin 
of safety. ATA and its supporters also contend (ATA Br. 47; 
APC Br. 35-36; Ohio Br. 12-13, 15) that EPA has discretion 
to consider compliance costs because, when EPA sets pri- 
mary NAAQS at a level “requisite to protect public health,” 
it must “allow[] an adequate margin of safety.” CAA 
§ 109(b)(1), 42 U.S.C. 7409(b)(1). The court of appeals has 
twice rejected that argument. See Lead Indus., 647 F.2d at 
1148-1150; Vinyl Chloride, 824 F.2d at 1158-1159. In con- 
text, Section 109(b)(1) plainly directs EPA to set primary 
NAAQS with an “adequate margin of safety” to ensure that 
those health-based standards will be set at a sufficiently 
stringent level to achieve Section 109(b)(1)’s objective of 
protecting public health. See S. Rep. No. 1196, supra, at 10 
(1 1970 Leg. Hist. 410); 116 Cong. Rec. at 33,099 (1 1970 Leg. 
Hist. 342) (Sen. Muskie). 

32 

7. Section 110(a)(2): Consideration of costs in the im- 
plementation program. ATA also argues (Br. at 45-47) that 
EPA’s longstanding interpretation of Section 109 is inconsis- 

States and to Congress in fashioning future legislation.” H.R. Rep. No. 
294, supra, at 183. 

32 ATA mistakenly relies on the court of appeals’ decision in Vinyl 
Chloride, which ruled that EPA may consider economic and technological 
feasibility when setting emission standards for especially hazardous pollu- 
tants under the 1970 version of Section 112. See pp. 3, 30-31, supra. The 
court concluded that Section 112 permitted EPA first to determine a 
“safe” level for a hazardous air pollutant—based solely on health 
factors—and then to consider cost and technological feasibility for the 
purpose of determining whether additional protection should be afforded 
by, for example, setting a standard at “the lowest feasible level.” 824 F.2d 
at 1165-1166. The court expressly distinguished, however, the standard 
for promulgating NAAQS under Section 109. Writing for the en banc 
court, Judge Bork explained that the language and structure of the CAA 
showed that “Congress simply did not intend the economics of pollution 
control to be considered in [Section 109’s] scheme of ambient air 
regulations.” Id. at 1159. Congress has since amended Section 112, 
essentially creating a new scheme for setting emission standards for 
especially hazardous air pollutants. 42 U.S.C. 7412. See pp. 30-31, supra. 

41 

tent with its interpretation of other provisions of the CAA, 
where EPA does consider compliance costs in making regu- 
latory decisions. ATA overlooks, however, that those other 
provisions involve different statutory language, subject 
matter, and policy choices. The cases ATA cites simply 
demonstrate that EPA may have discretion to consider costs 
in situations—unlike the situation posed by NAAQS prom- 
ulgation—where Congress has not expressly prescribed 
what factors it should consider in making regulatory deter- 
minations. 

For example, in Michigan v. EPA, supra, various 
States challenged EPA’s determination, under Section 
110(a)(2)(D), that certain ‘’upwind” States were making a 
“significant contribution” to NAAQS-nonattainment prob- 
lems in “downwind” States. 42 U.S.C. 7410(a)(2)(D). EPA 
identified 23 States that were “significant” contributors, and 
it required those States to reduce emissions to a level that 
could be achieved by employing “highly cost-effective 
controls.” See 213 F.3d at 675. The court of appeals rejected 
various challenges to EPA’s consideration of cost 
effectiveness. Id. at 675-678. The court concluded that the 
term “significant” was inherently ambiguous, that it had 
been construed in other contexts to include consideration of 
costs, and there was not—as under Section 109—“clear 
congressional intent to preclude consideration of costs.” Id. 
at 678 (quoting Vinyl Chloride). 

33 

33 The other cases on which ATA relies (Br. 45-47) also involved provi- 
sions of the CAA that do not specify what factors EPA is to consider and 
that present no evidence of congressional intent to exclude costs. See 
George E. Warren Corp. v. EPA, 159 F.3d 616, 624 (D.C. Cir. 1998) (con- 
sideration of cost “appears to be congruent with both the congressional 
purpose not to disrupt the market for imported gasoline and the Supreme 
Court’s instruction to avoid an interpretation that would put a law of the 
United States into conflict with a treaty obligation of the United States”); 
NRDC v. EPA, 937 F.2d 641, 645-646 (D.C. Cir. 1991) (text of provisions 
governing “prevention of significant deterioration” supports inference 

42 

8. Section 109(d)(1): Revision of NAAQS. APC, but not 
ATA, contends that Section 109(d)(1)’s directive that EPA 
revise the NAAQS “as may be appropriate” (42 U.S.C. 
7409(d)(1)) expands the range of factors that EPA may 
consider when it revises NAAQS. APC Br. 39-40. The court 
of appeals correctly rejected the argument. Pet. App. 20a- 
21a. As that court noted, Section 109(d)(1) directs EPA to 
“make such revisions in such criteria and standards * * * 
as may be appropriate in accordance with section 7408 of this 
title and subsection (b) of this section.” 42 U.S.C. 7409(d)(1). 
Accordingly, the legal standard governing a decision to 
revise a NAAQS, and the factors that bear on the decision, 
are exactly the same as those for an initial decision to set a 
NAAQS. 

34 

9. Section 101(b)(1): Goals of the CAA. ATA and others 
suggest that one of the CAA’s general goals set out in 
Section 101(b) – to promote “the productive capacity” of the 
Nation’s population, 42 U.S.C. 7401(b)(1)—should take 
precedence over the CAA’s specific language in Sections 108 
and 109 prescribing how NAAQS should be promulgated. 
E.g., ATA Br. 42-43; APC Br. 23, 29-30. They essentially 
contend that Section 101(b)(1) should be read to impose a 
requirement to consider economic factors in all decision- 
making under the Act. Section 101(b)(1) simply states, 
however, that one of the purposes of the Act is “to protect 
and enhance the quality of the Nation’s air resources so as to 
promote the public health and welfare and the productive 
capacity of its population.” 42 U.S.C. 7401(b)(1) (emphasis 

that Congress meant to “balance the values of clean air, on the one hand, 
and economic development and productivity, on the other.”). 

34 APC’s argument that EPA faces a higher burden to revise a 
standard than to set an initial standard is also wrong. APC mistakenly 
relies upon inapposite case law regarding an agency’s obligation to explain 
a change in policy. See APC Br. 42. When EPA revises a NAAQS, it is 
not changing policy, but carrying out a specific duty imposed by the CAA 
to review NAAQS at least once every five years. 42 U.S.C. 7409(d)(1). 

43 

added). The provision expresses Congress’s belief that 
improved air quality would enhance the Nation’s productive 
capacity by reducing the harm that air pollution causes. 

35 It 
does not alter the specific statutory directions that Congress 
set out in Sections 108 and 109 to achieve that goal. Cf. 
American Textile Mfrs., 452 U.S. at 510 (“When Congress 
has intended that an agency engage in cost-benefit analysis, 
it has clearly indicated such intent on the face of the 
statute.”). 

10. The UMRA and the RFA. There is no merit to the 
suggestion (ATA Br. 48; Amici Hatch Br. 25) that two later- 
enacted statutes, the Unfunded Mandates Reform Act, 2 
U.S.C. 1501 et seq. (UMRA), and the Regulatory Flexibility 
Act, 5 U.S.C. 601 et seq. (RFA), require EPA to consider 
costs in promulgating NAAQS. Those Acts encourage 
agencies to consider the economic effects of agency actions, 
but each Act also provides that its specific requirements do 
not apply if those requirements would be inconsistent with 
the statute under which the agency is taking action. 2 U.S.C. 
1535(b)(2) (Supp. IV 1998); 5 U.S.C. 604(a)(5) (1994 & Supp. 
IV 1998). There is a “clear inconsistency” (see Hatch Br. 25) 
between the requirements of the UMRA and the RFA and 
the requirement of Section 109 that NAAQS be based on the 
effects of ambient pollution on health and welfare. The 
UMRA and the RFA are pertinent in only one sense: They 
show that Congress is well aware that there are regulatory 
statutes that preclude consideration of costs. See generally 
Pet. App. 25a-31a. 

35 See, e.g., 116 Cong. Rec. at 42,522 (1 1970 Leg. Hist. 118) (remarks of 
Rep. Anderson) (“[a]ir pollution costs the United States over $12 billion 
annually,” through ruined crops, aging of buildings and clothing, 
deterioration of steel in bridges, rails and ships); 116 Cong. Rec. at 32,901 
(1 1970 Leg. Hist. 224) (remarks of Sen. Muskie) (“The costs of air 
pollution can be * * * measured in the billions of dollars of property 
losses.”). 

44 

C. The Administrator Did Not Base Her NAAQS Decisions 

On Consideration Of Compliance Costs 

After arguing that EPA has improperly construed 
Sections 108 and 109 to preclude consideration of non-health 
effects (ATA Br. 32-43), ATA reverses course and contends 
that EPA “may actually be considering non-health factors in 
setting NAAQS” (ATA Br. 43-45). That contention is with- 
out merit. Throughout the rulemaking proceedings, EPA 
was confronted with comments urging it to consider the 
technological feasibility, costs, and other alleged effects of 
implementing any new PM or ozone standards. EPA 
responded by explaining that the CAA requires that 
NAAQS be based on consideration of the health and welfare 
effects posed by “the presence of the pollutant in the air,” 
rather than on consideration of the feasibility or effects of 
implementing the standards. See 62 Fed. Reg. at 38,683- 
38,689; id. at 38,878-38,883. 

36 And while it is a matter of no 
relevance to this case, there is no evidence to support ATA’s 
claim (ATA Br. 43-44) that previous EPA Administrators 
secretly based their NAAQS decisions on impermissible 
factors. 

37 

36 Pursuant to executive order, EPA prepared a Regulatory Impact 
Analysis (RIA) for the two rules at issue here, as it must for any signifi- 
cant regulatory action. 62 Fed. Reg. at 38,702. EPA explained, however, 
that the RIA was for informational and implementation planning purposes 
only and could not play a part in the Administrator’s decision on standard- 
setting. See id. at 38,703 (PM); id. at 38,887 (ozone); see also PM App. 
3461-3462. An RIA is normally not a part of the record for judicial review 
of a NAAQS decision. Compare 42 U.S.C. 7607(d)(7)(A) with 42 U.S.C. 
7607(d)(4)(B)(ii). EPA nevertheless elected to include the RIA in these 
rulemakings because it was potentially relevant to judicial review of 
issues arising under the RFA, 5 U.S.C. 601 et seq. See 5 U.S.C. 611 (1994 
& Supp. IV 1998) (judicial review provisions). The court of appeals 
rejected the RFA challenges, Pet. App. 26a-31a, and they are not before 
this Court. 

37 ATA claims (ATA Br. 43-44), on the basis of a highly speculative 
reconstruction of the 1979 ozone rulemaking, that Administrator Douglas 

45 

D. Congress Has Resolved The Public Policy Question Of 

Whether Cost-Benefit Analysis Should Be Used In 
Setting NAAQS 

ATA and its supporters argue that EPA should set 
NAAQS through cost-benefit analysis, balancing the benefits 
of clean air against the resulting economic costs of achieving 
that goal, because that technique, in their view, would 
improve EPA’s decisionmaking process. E.g., ATA Br. 30, 
35-36; APC Br. 30-31. The question here, however, is 
whether Congress sanctioned that approach. The CAA’s 
specific provisions show that Congress directed EPA to set 
NAAQS based on public health and public welfare objectives 
rather than on the cost-benefit methodology that ATA would 
prefer. Congress was entitled to make that choice. 

38 

Congress has had sound reasons for adhering to that 
decision. Quantifying the nationwide environmental benefits 

Costle “admitted” that he considered costs in reaching his 1979 decision to 
revise the ozone NAAQS. See M. Landy, M. Roberts & S. Thomas, The 
Environmental Protection Agency: Asking the Wrong Questions from 
Nixon to Clinton 66-70 (Oxford Univ. Press 1994); see also W. Wagner, 
The Science Charade in Toxic Regulation, 95 Colum. L. Rev. 1613, 1641- 
1643 (1995) (relying on Landy, et al.). That claim is not accurate. Costle 
understood that the statute required him to reach a decision based solely 
on the scientific evidence regarding health effects, and he ultimately made 
his decision on that basis. See Landy, et al., supra, at 70-74; see also 
American Petroleum Inst., 665 F.2d at 1185 (upholding 1979 ozone 
standard and specifically rejecting the claim that the Administrator should 
have considered the cost of implementing the standard). 

38 Congress’s decision reflects what economists readily acknowledge: 
cost-benefit analysis can frequently play an important role in environ- 
mental regulation, but that methodology does not provide an appropriate 
basis for making decisions in every regulatory context. See AEI- 
Brookings Inst. Amici Br. 9-10 (noting that “[a]gencies should not be 
bound by a strict benefit-cost test,” that “[n]ot all impacts of a decision can 
be quantified or expressed in dollar terms,” and that decisionmakers must 
“give due consideration to factors that defy quantification”). Congress has 
made the legislative judgment that the methodology is not the appropriate 
one for EPA to use in setting NAAQS. See note 42, infra. 

46 

of NAAQS in monetary terms creates a deceptive appear- 
ance of certainty, but is fraught with difficulties, such as 
placing a monetary value on preventing a senior citizen’s 
premature death or a child’s asthma attack. 

39 Quantifying the 
costs associated with implementing NAAQS is a no less 
uncertain undertaking. Because NAAQS are set on a 
national level, because States have broad latitude in the SIP 
process to select local pollution control strategies, and 
because the time period from promulgation to full imple- 
mentation can span many years and produce unforeseen 
technological innovation, estimates of implementation costs 
are inherently—and often extraordinarily—speculative. 

40 

Indeed, EPA’s attempt to estimate the costs and benefits of 
the ozone and PM NAAQS at issue in this case, for infor- 
mational purposes only (see note 36, supra), has itself 
become a source of debate. 

41 Congress’s decision to confine 
the use of cost-benefit techniques to implementation efforts, 
which typically involve assessment of near-term 

39 See, e.g., L. Heinzerling, Regulatory Costs of Mythic Proportions, 
107 Yale L.J. 1981, 2044, 2065-2068 (1998); T. McGarity, A Cost-Benefit 
State, 50 Admin. L. Rev. 24-25 (1998); S. Shapiro & T. McGarity, Not So 
Paradoxical: The Rationale for Technology-Based Regulation, 1991 Duke 
L.J. 729, 732; H. Latin, Good Science, Bad Regulation and Toxic Risk 

Assessment, 5 Yale J. on Reg. 89, 92 (1988). 

40 See note 16, supra; see also, e.g., W. Harrington, R. Morgenstern & 
P. Nelson, On the Accuracy of Regulatory Cost Estimates, Resources for 
the Future Discussion Paper 99-18, at 10 (1999); T. McGarity, supra, 50 
Admin. L. Rev. at 7, 55, 76. 

41 ATA argues (ATA Br. 9-11) that EPA’s RIA shows that costs 
exceed benefits. In fact, the RIA, which did not quantify many 
“nonmonetizable benefits categories” (ES-3, ES-15 to ES-16), estimated 
that the benefits of the revised PM standards would far outweigh their 
costs and that the costs and benefits of the revised ozone standard would 
be roughly commensurate. See ES-1 to ES-22; 13-2. The RIA necessarily 
had to rely on highly uncertain data. See ES-3 to ES-5. The fact that the 
parties do not agree on the conclusions that can be drawn from the 
economic analysis in this case illustrates the difficulties that ATA’s 
position entails. 

47 

requirements for specific control measures on specific 
industries in specific locations, is entirely understandable. 

42 

In any event, it is not for this Court to rescind Congress’s 
legislative judgment on what is quintessentially a matter of 
public policy. Central Bank of Denver, N.A. v. First Inter- 
state Bank of Denver, N.A., 511 U.S. 164, 188 (1994). Con- 
gress has made its policy determination, and “it is up to 
Congress, not this Court, to revise the determination if it so 
chooses.” United States v. Noland, 517 U.S. 535, 541-542 n. 3 
(1996). 

III. EXPANDING THE RANGE OF FACTORS THAT 

EPA MAY CONSIDER IN SETTING NAAQS 
WOULD NEITHER RESOLVE NOR AVOID THE 
CONSTITUTIONAL ISSUE PERCEIVED BY THE 
COURT OF APPEALS 

Perhaps ATA will address in its reply brief the question 
that it has presented in its cross-petition but fails to develop 
in its opening brief—whether this Court should interpret 
Section 109 as allowing consideration of “non-health factors” 
to “avoid confronting constitutional nondelegation issues” 
(ATA Br. i). Because we will have no opportunity to respond 
to ATA’s reply brief, we address that matter in the first 
instance. 

As we explain in the companion case, No. 99-1257, Section 
109 is clearly constitutional under this Court’s nondelegation 
doctrine jurisprudence. See 99-1257 Pet. Br. 22-26. Because 

42 In effect, Congress has defined the CAA’s goals in terms of a public 
health and welfare objective, while recognizing the validity of the view of 
economists that “[e]conomic analysis can be useful in designing regulatory 
strategies that achieve a desired goal at the lowest possible cost.” AEI- 
Brookings Amici Br. 10. EPA’s Administrator has made that point in 
explaining why cost-benefit analysis is not appropriate in setting the 
NAAQS: “While cost-benefit analysis is a tool that can be helpful in 
developing strategies to implement our nation’s air quality standards, we 
believe it is inappropriate for use to set the standards themselves.” See 
1997 Hearings 282 (prepared testimony of Administrator Browner). 

48 

Congress has provided sufficient guidance “to meet any 
delegation doctrine attack,” this Court has no occasion to 
give Section 109 a narrowing construction to avoid an alleged 
“serious question of unconstitutional delegation of legislative 
power.” Federal Energy Administration v. Algonquin 
SNG, Inc., 426 U.S. 548, 559 (1976). 

43 

In any event, ATA’s proposed construction would not 
solve the supposed constitutional infirmity under the non- 
delegation doctrine. To the contrary, it would actually grant 
EPA broader discretion than Section 109’s plain language 
confers. See Scalia, supra, 24 Hous. L. Rev. at 102. Under 
ATA’s suggested approach, EPA would have discretion to 
set NAAQS—and courts would be required to review 
them—based on an open-ended inquiry into any conceivable 
costs or benefits that might result from promulgation of the 
NAAQS. Contrary to the court of appeals’ suppositions, 
Pet. App. 14a-18a, consideration of costs and other effects of 
implementation would not provide a “determinate criterion” 
for EPA in setting NAAQS. 

44 Accordingly, while we do not 
disagree with the court of appeals’ and ATA’s implication 

43 The principle that a statute must be construed so as to avoid doubts 
as to its constitutionality applies only when the statute’s meaning is 
unclear. See, e.g., Miller v. French, 120 S. Ct. 2246, 2255 (2000). Here, 
Congress has made unmistakably clear its intent that EPA should base its 
NAAQS decisions solely on the health and welfare effects posed by the 
presence of the pollutant in the ambient air. See, e.g., CFTC v. Schor, 478 
U.S. 833, 841 (1986) (the canon of constitutional doubt “does not give a 
court the prerogative to ignore the legislative will”). 

44 Casting the NAAQS decision in cost-benefit terms would not resolve 
the underlying scientific uncertainties that EPA must face in setting 
NAAQS. See pp. 9, 11, supra. At the same time, it would introduce new 
uncertainties respecting the quantification of costs and benefits that would 
result from implementing the NAAQS. See pp. 45-47, supra. Economists 
readily admit that, in cases where information on costs and benefits is 
uncertain, “benefit-cost analysis cannot be used to prove that the economic 
benefits of a decision will exceed or fall short of costs.” AEI-Brookings 
Inst. Amici Br. 9. 

49 

that Section 109 would not be unconstitutional if construed 
as ATA proposes, we believe that it follows a fortiori that 
Section 109 is also constitutional as it has been construed and 
applied throughout its 30-year existence. 

In sum, Congress fulfilled its responsibility under the 
nondelegation doctrine and made the fundamental policy 
choice. Congress concluded that NAAQS should be set for 
criteria pollutants on the basis of what is necessary to 
protect public health and public welfare. Cf. American 
Textile Mfrs., 452 U.S. at 509. Congress “itself determined 
that the economic effects of any necessary actions to meet 
the goals of [the NAAQS program] were acceptable.” See 
NCAQ Report, supra, at 273; pp. 25-32, supra. It did not 
authorize EPA to set NAAQS on the basis of the agency’s 
projection of compliance costs. Cf. American Textile Mfrs., 
452 U.S. at 545 (Rehnquist, C.J., dissenting) (health-based 
standards authorize an agency “to set exposure standards 
without regard to any kind of cost-benefit analysis”). ATA 
and its supporters can continue to ask Congress to recon- 
sider that policy choice, notwithstanding the substantial 
benefits that the CAA has provided to the American public. 
See, e.g., EPA, The Benefits and Costs of the Clean Air Act, 
1970 to 1990 (Oct. 1997). But unless and until Congress 
elects to change the law that has been in place since 1970, 
Congress’s legislative judgment should be given effect. 

50 

CONCLUSION 

This Court should affirm the court of appeals’ ruling that 
the Clean Air Act requires EPA to establish NAAQS based 
solely on consideration of the effects on public health and 
public welfare caused by the presence of criteria pollutants 
in the ambient air. 

Respectfully submitted. 

GARY S. GUZY 

General Counsel 
GERALD K. GLEASON 
MICHAEL L. GOO 

Attorneys 
Environmental Protection 

Agency 
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 
CHRISTOPHER S. VADEN 
DAVID J. KAPLAN 
MARY F. EDGAR 

Attorneys 

SEPTEMBER 2000 

APPENDIX 

Section 101 of the Clean Air Act provides in relevant part: 

§ 7401. Congressional findings and declaration of 
purpose 

* * * * * 

(b) Declaration 

The purposes of this subchapter are— 

(1) to protect and enhance the quality of the Nation’s air 
resources so as to promote the public health and welfare 
and the productive capacity of its population. 

* * * * * 

42 U.S.C. 7401. 

Section 108 of the Clean Air Act provides in relevant part: 

§ 7408. 

Air quality criteria and control techniques 

(a) Air pollutant list; publication and revision by 

Administrator; issuance of air quality criteria for air 

pollutants 

(1) For the purpose of establishing national primary 
and secondary ambient air quality standards, the Admini- 
strator shall within 30 days after December 31, 1970, 
publish, and shall from time to time thereafter revise, a 
list which includes each air pollutant— 

(A) emissions of which, in his judgment, cause or 
contribute to air pollution which may reasonably be 
anticipated to endanger public health or welfare; 

(1a) 

2a 

(B) the presence of which in the ambient air results 
from numerous or diverse mobile or stationary sources; 
and 

(C) for which air quality criteria had not been issued 
before December 31, 1970 but for which he plans to 
issue air quality criteria under this section. 

(2) The Administrator shall issue air quality criteria for 
an air pollutant within 12 months after he has included such 
pollutant in a list under paragraph (1). Air quality criteria 
for an air pollutant shall accurately reflect the latest scien- 
tific knowledge useful in indicating the kind and extent of all 
identifiable effects on public health or welfare which may be 
expected from the presence of such pollutant in the ambient 
air, in varying quantities. The criteria for an air pollutant, to 
the extent practicable, shall include information on– 

(A) those variable factors (including atmospheric condi- 
tions) which of themselves or in combination with other 
factors may alter the effects on public health or welfare 
of such air pollutant; 

(B) the types of air pollutants which, when present in 
the atmosphere, may interact with such pollutant to 
produce an adverse effect on public health or welfare; 
and 

(C) any known or anticipated adverse effects on 
welfare. 

3a 

(b) Issuance by Administrator of information on air 

pollution control techniques; standing consulting 

committees for air pollutants; establishment; 

membership 

(1) Simultaneously with the issuance of criteria under 
subsection (a) of this section, the Administrator shall, after 
consultation with appropriate advisory committees and 
Federal departments and agencies, issue to the States and 
appropriate air pollution control agencies information on air 
pollution control techniques, which information shall include 
data relating to the cost of installation and operation, energy 
requirements, emission reduction benefits, and environ- 
mental impact of the emission control technology. Such 
information shall include such data as are available on 
available technology and alternative methods of prevention 
and control of air pollution. Such information shall also 
include data on alternative fuels, processes, and operating 
methods which will result in elimination or significant 
reduction of emissions. 

(2) In order to assist in the development of information 
on pollution control techniques, the Administrator may esta- 
blish a standing consulting committee for each air pollutant 
included in a list published pursuant to subsection (a)(1) of 
this section, which shall be comprised of technically qualified 
individuals representative of State and local governments, 
industry, and the academic community. Each such commit- 
tee shall submit, as appropriate, to the Administrator 
information related to that required by paragraph (1). 

4a 

(c) Review, modification, and reissuance of criteria or 

information 

The Administrator shall from time to time review, and, as 
appropriate, modify, and reissue any criteria or information 
on control techniques issued pursuant to this section. * * * 

(d) Publication in Federal Register; availability of copies 

for general public 

The issuance of air quality criteria and information on air 
pollution control techniques shall be announced in the 
Federal Register and copies shall be made available to the 
general public. 

* * * * * 

42 U.S.C. 7408. 

Section 109 of the Clean Air Act provides in relevant part: 

§ 7409. 

National primary and secondary ambient 

air quality standards 

(a) Promulgation 

(1) The Administrator– 

(A) * * * shall publish proposed regulations 
prescribing a national primary ambient air quality 
standard and a national secondary ambient air quality 
standard for each air pollutant for which air quality 
criteria have been issued prior to such date; and 

(B) after a reasonable time for interested persons 
to submit written comments thereon (but no later than 
90 days after the initial publication of such proposed 
standards) shall by regulation promulgate such pro- 

5a 

posed national primary and secondary ambient air 
quality standards with such modifications as he deems 
appropriate. 

* * * * * 

(b) Protection of public health and welfare 

(1) National primary ambient air quality standards, 
prescribed under subsection (a) of this section shall be 
ambient air quality standards the attainment and main- 
tenance of which in the judgment of the Administrator, 
based on such criteria and allowing an adequate margin of 
safety, are requisite to protect the public health. Such 
primary standards may be revised in the same manner as 
promulgated. 

(2) Any national secondary ambient air quality standard 
prescribed under subsection (a) of this section shall specify a 
level of air quality the attainment and maintenance of which 
in the judgment of the Administrator, based on such criteria, 
is requisite to protect the public welfare from any known or 
anticipated adverse effects associated with the presence of 
such air pollutant in the ambient air. Such secondary stan- 
dards may be revised in the same manner as promulgated. 

* * * * * 

(d) Review and revision of criteria and standards; inde- 
pendent scientific review committee; appointment; 

advisory functions 

(1) Not later than December 31, 1980, and at five-year 
intervals thereafter, the Administrator shall complete a 
thorough review of the criteria published under section 7408 
of this title and the national ambient air quality standards 
promulgated under this section and shall make such revi- 
sions in such criteria and standards and promulgate such 

6a 

new standards as may be appropriate in accordance with 
section 7408 of this title and subsection (b) of this section. 
The Administrator may review and revise criteria or prom- 
ulgate new standards earlier or more frequently than 
required under this paragraph. 

(2)(A) The Administrator shall appoint an independent 
scientific review committee composed of seven members 
including at least one member of the National Academy of 
Sciences, one physician, and one person representing State 
air pollution control agencies. 

(B) Not later than January 1, 1980, and at five-year 
intervals thereafter, the committee referred to in sub- 
paragraph (A) shall complete a review of the criteria 
published under section 7408 of this title and the national 
primary and secondary ambient air quality standards 
promulgated under this section and shall recommend to the 
Administrator any new national ambient air quality 
standards and revisions of existing criteria and standards as 
may be appropriate under section 7408 of this title and 
subsection (b) of this section. 

(C) Such committee shall also * * * (iv) advise the 
Administrator of any adverse public health, welfare, social, 
economic, or energy effects which may result from various 
strategies for attainment and maintenance of such national 
ambient air quality standards. 

7a 

42 U.S.C. 7409. 

Section 110 of the Clean Air Act provides in relevant part: 

§ 7410 State implementation plans for national 

primary and secondary ambient air quality 
standards 

(a) Adoption of plan by State; submission to Administra- 
tor; content of plan; revision; new sources; indirect 

source review program; supplemental or intermittent 

control systems 

(1) Each State shall, after reasonable notice and public 
hearings, adopt and submit to the Administrator, within 3 
years (or such shorter period as the Administrator may 
prescribe) after the promulgation of a national primary 
ambient air quality standard (or any revision thereof) under 
section 7409 of this title for any air pollutant, a plan which 
provides for implementation, maintenance, and enforcement 
of such primary standard in each air quality control region 
(or portion thereof) within such State. * * * 

(2) Each implementation plan * * * shall— 

* * * * * 

(D) contain adequate provisions— 

(i) prohibiting, consistent with the provisions of this 
subchapter, any source or other type of emissions activity 
within the State from emitting any air pollutant in 
amounts which will— 

(I) contribute significantly to nonattainment in, or 
interfere with maintenance by, any other State with 

8a 

respect to any such national primary or secondary 
ambient air quality standard * * *. 

* * * * * 

42 U.S.C. 7410.