Nos. 99-1426, 99-1431 and 99-1442 

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. 

APPALACHIAN POWER COMPANY, ET AL., 
CROSS-PETITIONERS 

v. 
UNITED STATES ENVIRONMENTAL PROTECTION 
AGENCY, ET AL. 

CITIZENS FOR BALANCED TRANSPORTATION, ET AL., 
CROSS-PETITIONERS 

v. 
CAROL M. BROWNER, ADMINISTRATOR OF THE 

ENVIRONMENTAL PROTECTION AGENCY, ET AL. 

ON CONDITIONAL CROSS-PETITIONS FOR A WRIT 
OF CERTIORARI TO THE UNITED STATES COURT OF APPEALS 
FOR THE DISTRICT OF COLUMBIA CIRCUIT 

BRIEF FOR THE FEDERAL CROSS-RESPONDENTS 
IN OPPOSITION 

GARY S. GUZY 

General Counsel 
Environmental Protection 

Agency 
Washington, D.C. 20415 
SETH P. WAXMAN 

Solicitor General 

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

QUESTIONS PRESENTED 

1. Whether the court of appeals properly reaffirmed 
the long-standing principle that, in setting and revising 
National Ambient Air Quality Standards (NAAQS) 
under Section 109 of the Clean Air Act, the Environ- 
mental Protection Agency (EPA) may not consider the 
costs, technical feasibility, or other alleged effects of 
implementing measures to attain the NAAQS (Nos. 99- 
1426 and 99-1431). 

2. Whether the court of appeals properly resolved 
various claims, by postponing decision or rejecting 
them outright, that EPA’s primary and secondary 
NAAQS for fine particulate matter (PM2.5) are inade- 
quate to protect public health and welfare (No. 99- 
1442). 

(I) 

TABLE OF CONTENTS 

Page 

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

Argument ........................................................................................ 5 

Conclusion ....................................................................................... 23 

TABLE OF AUTHORITIES 

Cases: 

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

Cir. 1998) ................................................................................. 

8 

American Petroleum Inst. v. Costle, 665 F.2d 

1176 (D.C. Cir. 1981), cert. denied, 455 U.S. 1034 

(1982) ........................................................................................ 8 

American Petroleum Inst. v. Gorsuch, cert. denied, 

455 U.S. 1034 (1982) .............................................................. 

8 

Bob Jones Univ. v. United States, 461 U.S. 574 

(1983) ........................................................................................ 15 

California Div. of Labor Standards Enforcement 

v. Dillingham Const., N.A., Inc., 519 U.S. 316 

(1997) ........................................................................................ 21 

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

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

3, 9 

Industrial Union Dep’t v. American Petroleum 

Inst., 448 U.S. 607 (1980) ................................................... 

16 

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

Cir.), cert. denied, 449 U.S. 1042 (1980) ............ 

3, 8, 9, 12, 14 

Longview Fibre Co. v. Rasmussen, 980 F.2d 1307 

(9th Cir. 1992) ......................................................................... 

10 

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

6, 18-19 

Natural Resources Defense Council, Inc. v. EPA: 

824 F.2d 1146 (D.C. Cir. 1987) ................................ 

8, 9, 12, 17 

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

1082 (1991) ......................................................................... 

3, 8, 12 

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

15 

St. Joe Minerals Corp. v. EPA, cert. denied, 449 

U.S. 1042 (1980) ...................................................................... 8 

(III) 

IV 

Cases—Continued: Page 

Shook v. District of Columbia Fin. Responsibility & 

Management Assistance Auth., 132 F.3d 775 (D.C. 

Cir. 1998) ................................................................................. 

10 

Train v. Natural Resources Defense Council, Inc., 

421 U.S. 60 (1975) .................................................. 

7, 11, 13, 16 

Union Elec. Co. v. EPA, 427 U.S. 246 (1976) ................... 

7, 11, 

13, 16 

Virginia v. EPA, 108 F.3d 1397 (D.C. Cir. 1997) ............. 
12 

Statutes: 

Air Quality Act of 1967, Pub. L. No. 9-148, § 2, 

81 Stat. 485 .............................................................................. 

7 

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

§ 108, 42 U.S.C. 7408 ............................................ 

9, 10, 14, 18 

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

10 

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

7, 9, 14, 17, 18 

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

9 

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

7, 9, 10 

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

5 

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

14 

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

14 

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

4 

§ 110, 42 U.S.C. 7410 ....................................................... 

11, 12 

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

12 

§ 112, 42 U.S.C. 7412 ........................................................... 

17 

§ 160(1), 42 U.S.C. 7470(1) .................................................. 

23 

§ 169A, 42 U.S.C. 7491 ........................................................ 

5 

§§ 181-192, 42 U.S.C. 7511-7514a ........................................ 

15 

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

19 

Clean Air Act Amendments of 1970, Pub. L. No. 

91-604, 84 Stat. 1676 ............................................................ 

7, 10 

§ 110, 84 Stat. 1680 ............................................................ 

12 

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

10 

§ 111(a)(1), 84 Stat. 1683 .................................................. 10 

V 

Statutes—Continued: Page 

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

10 

Clean Air Act Amendments of 1977, Pub. L. No. 

90-95, 91 Stat. 685 .................................................................. 

14 

Clean Air Act Amendments of 1990, Pub. L. No. 

101-549, Tit. I, 94 Stat. 2399 ................................................. 

15 

Occupational Safety and Health Act, 29 U.S.C. 651 

et seq. ........................................................................................ 

16 

29 U.S.C. 655(b) ................................................................ 

16 

29 U.S.C. 655(b)(5) ........................................................... 

16 

29 U.S.C. 658-659 .............................................................. 

16 

Miscellaneous: 

36 Fed. Reg. 8186 (1971) .......................................................... 

8 

62 Fed. Reg.: 

p. 38,652 ................................................................................. 

5 

p. 38,669 ................................................................................. 
22 

pp. 38,669-38,671 .................................................................... 
22 

pp. 38,683-38,688 .................................................................... 
8 

p. 38,671 ................................................................................. 
22 

p. 38,676 ................................................................................. 
22 

p. 38,683 ................................................................................. 
5 

p. 38,685 ................................................................................. 
14 

p. 38,702 ................................................................................. 
17 

H.R. Rep. No. 490, 101st Cong., 2d Sess., Pt. 1 
(1990) ........................................................................................ 15 

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

14, 15 

S. Rep. No. 1196, 91st Cong., 2d Sess. (1970) ................ 
13, 16 

S. Rep. No. 228, 101st Cong., 1st Sess. (1989) ..................... 15 

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. 

No. 99-1431 

APPALACHIAN POWER COMPANY, ET AL., 
CROSS-PETITIONERS 

v. 
UNITED STATES ENVIRONMENTAL PROTECTION 
AGENCY, ET AL. 

No. 99-1442 

CITIZENS FOR BALANCED TRANSPORTATION, ET AL., 
CROSS-PETITIONERS 

v. 

CAROL M. BROWNER, ADMINISTRATOR OF THE 

ENVIRONMENTAL PROTECTION AGENCY, ET AL. 

ON CONDITIONAL CROSS-PETITIONS FOR A WRIT 
OF CERTIORARI TO THE UNITED STATES COURT OF APPEALS 
FOR THE DISTRICT OF COLUMBIA CIRCUIT 

BRIEF FOR THE FEDERAL CROSS-RESPONDENTS 
IN OPPOSITION 

(1) 

2 

STATEMENT 

The federal government’s petition for a writ of 
certiorari (No. 99-1257) seeks review of the court of 
appeals’ ruling that the Environmental Protection 
Agency (EPA) has interpreted the Clean Air Act 
(CAA) in a way that effects an unconstitutional dele- 
gation of legislative power. 99-1257 Pet. I. The petition 
also challenges the court of appeals’ premature and 
mistaken ruling limiting how EPA may implement one 
of the two remanded National Ambient Air Quality 
Standards (NAAQS) at issue—the ozone NAAQS. 
Ibid. The cross-petitions seek to introduce two sets of 
unrelated issues involving particular details of the 
underlying rulemakings. 

First, two groups of industrial interests, the Ameri- 
can Trucking Associations, et al. (ATA), and Appala- 
chian Power Company, et al. (APC), ask this Court to 
review the court of appeals’ unanimous statutory ruling 
that, in setting and revising NAAQS, EPA is precluded 
from considering the economic costs and effects of 
implementing those standards. ATA Cross-Pet. i; APC 
Cross-Pet. i. That ruling reaffirms EPA’s 30-year-old 
construction of the CAA and a series of unanimous 
judicial decisions stretching over 20 years. See 99-1257 
Pet. App. 19a-21a. 

Second, a group of environmental interests, Citizens 
for Balanced Transportation, et al. (CBT), seeks review 
of particular challenges to EPA’s selection of the 24- 
hour primary NAAQS for particulate matter (PM) of 

2.5 microns or less (PM2.5) and its selection of the 
secondary NAAQS for PM2.5. CBT Cross-Pet. i. The 
court of appeals concluded that it could not reach most 
of those issues in light of its remand to the agency. See 
99-1257 Pet. App. 4a-5a. 

3 

We describe below the court’s reasoning on the 
issues raised by the cross-petitions. 

1. The court of appeals’ decision in this case ad- 
dresses a broad range of industry and environmental 
challenges to EPA’s ozone and PM NAAQS. Among 
other things, the decision reiterates 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.” 99-1257 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 other effects that may result from 
implementation of the NAAQS. Natural Resources 
Defense Council, Inc. v. EPA, 902 F.2d 962, 973 (D.C. 
Cir. 1990) (EPA need not consider alleged health effects 
associated with unemployment), cert. denied, 498 U.S. 
1082 (1991); see also Lead Indus. Ass’n v. EPA, 647 
F.2d 1130, 1148 (D.C. Cir.), cert. denied, 449 U.S. 1042 
(1980). 

The court expressly considered and rejected ATA’s 
and APC’s arguments that it should reconsider its 
decision in Lead Industries because that case was 
decided without the benefit of this Court’s decision in 
Chevron U.S.A. Inc. v. Natural Resources Defense 
Council, Inc., 467 U.S. 837 (1984). The court explained: 

The Lead Industries decision was made in Chevron 
step one terms, * * * as the post-Chevron progeny 
of Lead Industries have made clear. [Natural 
Resources Defense Council, Inc. v. EPA], 902 F.2d 
[962,] 973 [(D.C. Cir. 1990), cert. denied, 498 U.S. 
1082 (1991)] (“Consideration of costs . . . would be 
flatly inconsistent with the statute, legislative his- 
tory and case law on this point”); NRDC v. EPA, 

4 

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.”). 

99-1257 Pet. App. 19a-20a. 

The court of appeals additionally considered and 
rejected the argument that, even if EPA could not 
consider costs in initially setting NAAQS, it could do so 
when revising NAAQS. 99-1257 Pet. App. 20a. Finally, 
the court rejected the industrial groups’ argument that 
Congress’s directions to the Clean Air Scientific Advi- 
sory Committee (CASAC) to 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. 99-1257 Pet. App. 
21a. Instead, the CAA directs CASAC to provide that 
advice in light of EPA’s separate duty to give the 
States information on control strategies. Ibid. 

2. CBT challenged as arbitrary and capricious 
EPA’s decision not to set a more stringent 24-hour pri- 
mary NAAQS and more stringent 24-hour and annual 
secondary NAAQS for PM2.5. Because the court of 
appeals remanded the PM2.5 NAAQS on nondelegation 
grounds, the court of appeals did not rule on CBT’s 
claims except in one narrow respect. 99-1257 Pet. App. 
5a, 56a. In the final rule, EPA had announced its deci- 
sion to address adverse effects that fine PM may have 
on visibility by establishing secondary PM2.5 NAAQS 
(at the same levels as the primary PM2.5 NAAQS) and 
by implementing the Regional Haze Program described 
in Section 169A of the CAA, 42 U.S.C 7491. 99-1257 

5 

Pet. App. 56a; 62 Fed. Reg. 38,652, 38,683 (1997). The 
court of appeals rejected CBT’s argument that Section 
109(b)(2), 42 U.S.C. 7409(b)(2), requires EPA to set sec- 
ondary NAAQS that will eliminate all adverse effects 
on visibility and deprives EPA of authority to address 
some impairment of visibility through another program. 
99-1257 Pet. App. 57a. The court explained that the 
CAA included the Regional Haze Program to address 
adverse effects on visibility that may persist in areas 
such as national parks “notwithstanding attainment and 
maintenance of all [NAAQS].” Ibid. 

3. Neither ATA, APC, nor any other party sought 
rehearing on the cost issue. CBT filed petitions for 
rehearing and rehearing en banc as to all of its claims. 
CBT’s petitions were denied without dissent. 99-1257 
Pet. App. 71a, 101a. 

ARGUMENT 

As our petition for a writ of certiorari explains, the 
court of appeals has erred in two fundamental respects: 
(1) it remanded EPA’s revised PM and ozone NAAQS 
based on an aberrant notion of the nondelegation doc- 
trine (99-1257 Pet. 9-10, 11-19); and (2) it prematurely 
and mistakenly decided how EPA should eventually 
implement the ozone NAAQS (99-1257 Pet. 19-30). As 
our reply brief explains, respondents have failed to 
provide persuasive reasons against review. Instead, 
they have recharacterized the court of appeals’ decision 
in ways that obfuscate the issues. The cross-petitions 
at issue here add another layer of complexity and con- 
fusion. They raise no issue that would independently 
warrant review or that would assist the Court in re- 
solving the core nondelegation issue. To the contrary, 
the cross-petitions would complicate the case with 
issues that, on the one hand, have long been settled or, 

6 

on the other hand, the court of appeals had no occasion 
to reach. 

1. The flaws in the court of appeals’ nondelegation 
analysis are not difficult to discern. This Court has 
developed the nondelegation doctrine to preserve the 
Constitution’s separation of governmental powers. 
E.g., Mistretta v. United States, 488 U.S. 361, 371-372 
(1989). It prohibits Congress from vesting its legislative 
power in an executive branch agency. Ibid. The court 
of appeals erred because it misconceived the nondele- 
gation doctrine as a judicial check on agency discretion. 
See 99-1257 Pet. App. 14a. The court of appeals’ deci- 
sion confuses two distinct lines of inquiry and, in the 
process, wrongly sets aside legitimate agency action. 
The Court should therefore correct that fundamental 
misconception and remand the case to the court of 
appeals with directions to review the EPA’s rules 
under the correct standard of review. See 99-1257 EPA 
Reply Br. 2-6. 
ATA and APC urge a different course. They argue 
that the Court should broaden the inquiry and use the 
court of appeals’ mistake as a vehicle for setting aside 
long-settled statutory principles that have guided 
EPA’s implementation of the CAA for 30 years. They 
specifically challenge the firmly established principle 
that EPA should set NAAQS based on the public health 
and welfare effects caused by the pollutant’s presence 
in the ambient air and not on the potential economic 
costs or other alleged effects of implementing the 
NAAQS. See ATA Cross-Pet. 14-27; APC Cross-Pet. 
14-25. The court of appeals was divided on the non- 
delegation issue, but it unanimously rejected the indus- 
trial groups’ arguments on this point and reiterated its 
past holding that the CAA directs that questions of 
economic costs and the other effects of implementing 

7 

NAAQS can be considered only as part of the imple- 
mentation process. 99-1257 Pet. App. 19a-21a. 

The Court should decline ATA’s and APC’s invitation 
to complicate consideration of the nondelegation issue. 
The court of appeals’ decision is correct as to the issue 
they raise. Moreover, it rests on settled law that has 
long guided the actions of EPA, Congress, and the 
courts. Contrary to ATA’s urgings, the constitutional 
question of whether Congress has vested EPA with 
legislative power is not “tightly intertwined” (ATA 
Cross-Pet. 7) with the statutory issue of whether 
Congress directed EPA to set NAAQS based solely on 
health and welfare effects of ambient pollution concen- 
trations. 

a. Congress introduced the NAAQS-based frame- 
work through the enactment of the Clean Air Act 
Amendments of 1970.1 Since that time, EPA has 
consistently applied Section 109 according to its 
terms, which require EPA to set primary NAAQS at 
levels “requisite to protect the public health.” CAA 
§ 109(b)(1), 42 U.S.C. 7409(b)(1). EPA has consistently 
rejected the notion that, when promulgating NAAQS, it 
may consider costs, technical feasibility, or related 
factors.2 ATA and APC ask this Court to overturn 20 

1 As this Court has recognized, Congress was dissatisfied with 
progress under the Air Quality Act of 1967, Pub. L. No. 90-148, § 2, 
81 Stat. 485, and enacted the Clean Air Act Amendments of 1970 to 
make far-reaching changes in the Nation’s approach to air pollution 
control. Train v. Natural Resources Defense Council, Inc., 421 
U.S. 60, 64 (1975); see Union Electric Co. v. EPA, 427 U.S. 246, 
256-257 (1976). 

2 When promulgating the first NAAQS, Administrator Ruck- 
elshaus announced that no revisions were made to the proposed 
NAAQS in response to comments questioning the feasibility of 
their implementation. He stated that the CAA “does not permit 

8 

years of court of appeals precedent—decided in the 
course of reviewing predecessor NAAQS—upholding 
that interpretation.3 

As ATA acknowledges (Cross-Pet. 5-6), this Court 
has repeatedly declined to review the issue that ATA 
and APC press here.4 There is no reason to reach a 
different result now. ATA offers no support for its 
claim that the court of appeals itself “now lacks confi- 
dence” in the holding of Lead Industries (Cross-Pet. 17- 

18). To the contrary, the court of appeals has re- 
peatedly rejected ATA’s and APC’s principal argu- 
ments without a single dissent.5 The cross-petitions do 
not raise a controversial issue; the entire District of 

any factors other than health to be taken into account in setting 
the primary standards.” 36 Fed. Reg. 8186 (1971). See also, e.g., 62 
Fed. Reg. at 38,683-38,688 (detailed response to comments on this 
issue in the PM rulemaking). 

3 American Lung Ass’n v. EPA, 134 F.3d 388, 389 (D.C. Cir. 
1998); Natural Resources Defense Council, Inc. v. EPA, 902 F.2d 
962, 973 (D.C. Cir. 1990), cert. denied, 498 U.S. 1082 (1991); 
American Petroleum Inst. v. Costle, 665 F.2d 1176, 1185 (D.C. Cir. 
1981), cert. denied, 455 U.S. 1034 (1982); Lead Indus. Ass’n v. 
EPA, 647 F.2d 1130, 1148 (D.C. Cir.), cert. denied, 449 U.S. 1042 
(1980); see also Natural Resources Defense Council, Inc. v. EPA, 
824 F.2d 1146, 1158-1159 (D.C. Cir. 1987) (en banc) (Vinyl 
Chloride). 

4 See Pet. at 8-11, St. Joe Minerals Corp. v. EPA, cert. denied, 
449 U.S. 1042 (1980) (No. 80-483); Pet. at 18-23, American Petro- 
leum Inst. v. Gorsuch, cert. denied, 455 U.S. 1034 (1982) (No. 80- 
871). 

5 Since 1980, 15 judges of the District of Columbia Circuit— 
including Judge Bork writing for the court en banc in Vinyl 
Chloride—have expressed approval of EPA’s interpretation. Con- 
trary to APC’s assertion (Cross-Pet. 24), nothing in any of the 
decisions after Lead Industries remotely suggests that the court of 
appeals felt “its hands were tied” by that decision. See cases cited 
in note 3, supra. 

9 

Columbia Circuit has long viewed the matter as settled. 
See 99-1257 Pet. App. 19a. Indeed, if ATA and APC 
thought otherwise, they should have challenged the 
panel’s unanimous ruling through a petition for re- 
hearing en banc. 

The court of appeals and EPA have correctly con- 
cluded that Congress “has directly spoken to the pre- 
cise question at issue.” Chevron U.S.A. Inc. v. Natural 
Resources Defense Council, Inc., 467 U.S. 837, 842 
(1984). Section 109(b)(1) of the CAA directs EPA to set 
primary NAAQS at a level “requisite to protect the 
public health.” See 42 U.S.C. 7409(b)(1). It does not 
direct EPA to consider economic and other costs when 
setting NAAQS, and there is no basis for inferring that 
Congress intended those factors to be considered at 
that initial stage of the regulatory process. The lan- 
guage and structure of the 1970 CAA demonstrate that 
the overriding purpose of NAAQS promulgation is to 
determine, as the first step of the CAA regulatory 
program, the ambient air quality standards that are 
necessary to protect the public health and 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 must 
meet, discusses or otherwise suggests any considera- 
tion of cost or technical feasibility. See Lead Indus. 
Ass’n, 647 F.2d at 1149; Vinyl Chloride, 824 F.2d at 
1158.6 

6 The States of Ohio, Michigan, and West Virginia suggest in 
their brief supporting the cross-petitions (Midwest States Br. 9-13) 
that there is a broader inconsistency in the District of Columbia 
Circuit’s case law with respect to whether administrative agencies 
ever have authority to consider factors other than those explicitly 
mentioned in enabling legislation. This alleged conflict goes 
beyond any question presented in a timely petition or cross-peti- 

10 

Section 109(b)(1) specifically 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 knowl- 
edge” about effects on health and welfare “which may 
be expected from the presence of such pollutant in the 
ambient air.” 42 U.S.C. 7408(a)(2). Section 108(a)(2) 
makes no mention whatsoever of effects from imple- 
menting the NAAQS—it mentions only effects result- 
ing from the presence of a criteria pollutant in the air. 
That silence is telling in light of other sections of the 
Clean Air Act Amendments of 1970 where Congress 
expressly provided that EPA should consider costs and 
similar factors in making decisions.7 

The structure of the CAA also indicates that EPA 
should promulgate NAAQS based on health and wel- 
fare effects and not on the basis of costs or alleged 
adverse effects that may result from their implemen- 

tion. Moreover, the question cannot be addressed in such abstract 
terms, because the answer depends on the purpose and context of 
a particular statute. The principle of expressio unius est exclusio 
alterius is merely one tool of statutory construction, not a rule of 
law, see Shook v. District of Columbia Fin. Responsibility & Man- 
agement Assistance Auth., 132 F.3d 775, 782 (D.C. Cir. 1998); 
Longview Fibre Co. v. Rasmussen, 980 F.2d 1307, 1313 (9th Cir. 
1992), and therefore its application can be expected to differ from 
one circumstance to another. 

7 E.g., Clean Air Act Amendments of 1970, Pub. L. No. 91-604, 
§ 110(e)(1), 84 Stat. 1682 (authorizing EPA to grant States up to a 
two-year extension of a NAAQS attainment date if necessary 
technology is not available); § 111(a)(1), 84 Stat. 1683 (requiring 
consideration of economic and technological feasibility in establish- 
ing standards of performance for new stationary sources); § 231(b), 
84 Stat. 1704 (authorizing consideration of economic and technical 
feasibility in establishing aircraft emission standards). 

11 

tation. As this Court recognized long ago, the CAA is a 
“technology-forcing” statute that sets ambitious goals 
to protect public health and welfare. See Train v. 
Natural Resources Defense Council, Inc., 421 U.S. 60, 
91 (1975). In that respect, Congress has indicated ex- 
pressly when and to what extent costs and implementa- 
tion effects shall be considered in the regulatory 
process. See Union Elec. Co. v. EPA, 427 U.S. 246 
(1976).8 

For example, States are entitled to develop State 
Implementation Plans (SIPs) governing how NAAQS 
will be implemented within their borders. See CAA 
§ 110, 42 U.S.C. 7410. States may properly consider the 
costs of NAAQS implementation when formulating the 
SIPs, and EPA may not override those judgments so 
long as the SIP will achieve attainment of the NAAQS. 
See Union Elec. Co., 427 U.S. at 256-269.9 The Court 
also recognized that the CAA does not allow a State to 
rely on those considerations at the expense of meeting 
the statutory deadlines for attaining the national 
health-based standards. Id. at 266-269. 

10 The Court’s 

8 See 427 U.S. at 269 (“Technology forcing is a concept some- 
what new to our national experience and it necessarily entails 
certain risks. But Congress considered those risks in passing the 
1970 Amendments and decided that the dangers posed by uncon- 
trolled air pollution made them worth taking.”). 

9 See, e.g., 427 U.S. at 266 (“Perhaps the most important forum 
for consideration of claims of economic and technological infeasibil- 
ity 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.”). 

10 See, e.g., 427 U.S. at 268-269 (“In short, the [Clean Air Act 
Amendments of 1970] offer ample opportunity for consideration of 
claims of technological and economic infeasibility. Always, how- 

12 

longstanding decision in Union Electric, describing the 
CAA as a “technology-forcing” statute and explaining 
how cost considerations are introduced into the regula- 
tory scheme on a State-by-State basis in the imple- 
mentation process, would make little sense if EPA had 
to promulgate NAAQS based on an analysis of costs 
and related implementation factors at the outset of the 
regulatory process. 

11 

As the court of appeals has repeatedly noted, the 
legislative history of the 1970 Amendments confirms 
the paramount importance of setting primary NAAQS 
based solely on the health effects posed by the pollutant 
in the ambient air. See Vinyl Chloride, 824 F.2d at 
1158; Lead Indus. Ass’n, 647 F.2d at 1149. For exam- 
ple, the Senate report accompanying the 1970 Amend- 
ments states: 

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 

ever, care is taken that consideration of such claims will not inter- 
fere substantially with the primary goal of prompt attainment of 
the national standards. * * * Congress plainly left with the 
States, so long as the national standards were met, the power to 
determine which sources would be burdened by regulation and to 
what extent.”). 

11 Section 110 of the 1970 CAA, which was construed by the 
Court in Union Electric, has since undergone considerable revi- 
sion, but the principles set forth above have not been altered. See 
Virginia v. EPA, 108 F.3d 1397, 1407-1409 (D.C. Cir. 1997); 42 
U.S.C. 7410(k). 

13 

areas, even with application of available technology, 
would still be deleterious to public health. 

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

S. Rep. No. 1196, 91st Cong., 2d Sess. 2-3 (1970). In 
other words, the primary NAAQS should be based on 
health effects rather than economic or technical feasibil- 
ity, and as a result, the NAAQS have a “technology- 
forcing” effect. See Train, 421 U.S. at 91; Union Elec. 
Co., 427 U.S. at 257, 269. 

At bottom, APC urges this Court to revisit the long- 
settled question of whether EPA should consider costs 
and other alleged implementation effects in setting 
NAAQS because, in APC’s view, its preferred approach 
would be “wise social policy.” See, e.g., APC Cross-Pet. 
6-7. But Congress concluded otherwise, and Congress’s 
choice was certainly a rational one. Congress reason- 
ably concluded that NAAQS should be based on health 
and welfare considerations alone so that Congress and 
the public know that EPA’s judgments on the health 
and welfare threats posed by particular criteria pollut- 
ants are not compromised by considerations of eco- 
nomic and technical feasibility. As this Court recog- 
nized in Union Electric, Congress provided the States 
with flexibility in the implementation process to 
consider the economic and technical feasibility of 
attainment, 427 U.S. at 266-269, but it reserved to itself 
the prerogative of deciding – as a matter of legislative 
choice – whether and how to alter the statutory scheme 

14 

if public health needs should prove to conflict with an 
industry’s economic viability. 

12 

Congress has since recognized and exercised that 
prerogative. See 62 Fed. Reg. at 38,685. In the course 
of formulating the Clean Air Act Amendments of 1977, 
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). It was also aware that some of the NAAQS 
criteria pollutants might be non-threshold pollutants 
and that significant scientific uncertainties are inherent 
in setting health-based standards. See id. at 43-51, 110- 
112. In response, Congress made significant changes in 
the provisions for implementing the NAAQS, including, 
for example, an extension of the deadline for attaining 
the ozone NAAQS. It also amended Sections 108 and 
109 of the Act to require periodic review and revision of 
NAAQS and to establish CASAC. Nevertheless, Con- 
gress did not change the substantive criteria for setting 
and revising NAAQS. See 62 Fed. Reg. at 38,685 & 

n.66 (describing the 1977 Amendments). 

13 

12 See Lead Indus. Ass’n, 647 F.2d at 1150 (“if there is a prob- 
lem with the economic or technological feasibility of the lead stan- 
dards, * * * any * * * party affected by the standards, must 
take its case to Congress, the only institution with the authority to 
remedy the problem”); 99-1257 Pet. App. 68a-69a (Tatel, J., in dis- 
sent, noting the role of politically accountable States in imple- 
menting NAAQS and the availability of congressional relief ). 

13 In addition to requiring CASAC to advise EPA on issuing 
new or revised criteria and NAAQS, 42 U.S.C. 7409(d)(2)(B), Con- 
gress separately charged CASAC with advising EPA on imple- 
mentation effects, 42 U.S.C. 7409(d)(2)(C). But that does not mean, 
as APC contends (Cross-Pet. 22), that EPA is to consider these 
effects in setting or revising NAAQS. See 99-1257 Pet. App. 21a; 

p. 4, supra. The legislative history removes any doubt on that 
matter. The House Report indicates that Congress did “not intend 

15 

Congress exercised that prerogative again in 1990. 
The Clean Air Act Amendments of 1990 responded to 
persistent nonattainment problems by adjusting the 
scheme for their implementation. See, e.g., CAA 
§§ 181-192, 42 U.S.C. 7511-7514a. Significantly, Con- 
gress was fully aware of how NAAQS are promulgated, 
and it did not change the legal standard on which 
NAAQS are based. To the contrary, both the House 
and Senate Reports accompanying the 1990 Amend- 
ments expressly reflect 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., 2d 
Sess., Pt. 1, at 145 (1990) (emphasis added); accord S. 
Rep. No. 228, 101st Cong., 1st Sess. 5 (1989). Con- 
gress’s actions confirm that the court of appeals and 
EPA have correctly discerned congressional intent to 
preclude consideration of economic and technical fea- 
sibility in setting and revising NAAQS. Cf. Bob Jones 
Univ. v. United States, 461 U.S. 574, 600-602 (1983) 
(Congress “affirmatively manifested its acquiescence” 
in IRS policy by articulating the policy in committee 
reports accompanying related legislation); Red Lion 
Broad. Co. v. FCC, 395 U.S. 367, 381 (1969) (“the con- 
struction of a statute by those charged with its execu- 
tion should be followed unless there are compelling 
indications that it is wrong, especially when Congress 
has refused to alter the administrative construction”). 

this provision to be used as a basis for the Administrator to 
disapprove any State’s plan,” but “may be of interest and 
assistance to the States and to Congress in fashioning future 
legislation.” H.R. Rep. No. 294, supra, at 183. 

16 

ATA attempts to overcome the overwhelming evi- 
dence of congressional intent by drawing analogies 
from this Court’s decision in Industrial Union De- 
partment v. American Petroleum Institute., 448 U.S. 
607 (1980). See ATA Cross-Pet. 15-16. That case, 
however, involves a different statute, with different 
language, that creates an entirely different regulatory 
program. The Occupational Safety and Health Act 
(OSH Act), 29 U.S.C. 651 et seq., directs the Secretary 
of Labor to establish “occupational safety and health 
standard[s],” 29 U.S.C. 655(b), that are directly 
applicable to industrial employers and that are directly 
enforced by federal officials. 29 U.S.C. 658-659. The 
OSH Act expressly requires the Secretary to consider 
whether standards dealing with toxic materials or 
harmful physical agents are “feasible.” 29 U.S.C. 
655(b)(5). 

The CAA’s NAAQS promulgation process, by con- 
trast, is simply the first step in a federal-state regula- 
tory program and does not create standards that are 
themselves directly applicable to any air pollution 
source. The CAA directs EPA to set NAAQS at levels 
of air quality “requisite” to protect public health and 
welfare, but the CAA empowers the States to deter- 
mine appropriate emission limitations and other con- 
trols on individual air pollution sources. See generally 
Train, supra; Union Elec. Co., supra. Unlike the OSH 
Act scheme, the CAA requires the Administrator to 
determine, as an initial matter, the exposure limitations 
necessary to protect health and welfare and leaves to 
the States discretion to consider—consistent with their 
obligation to meet the attainment deadlines—the eco- 
nomic or technological feasibility of compliance. See 
Union Elec. Co., 427 U.S. at 259 (quoting S. Rep. No. 
1196, 91st Cong., 2d Sess. 2-3 (1970)). 

17 

ATA’s and APC’s reliance on the court of appeals’ en 
banc decision in Vinyl Chloride, 824 F.2d at 1158-1159, 
is similarly misplaced. See ATA Cross-Pet. 15-18; APC 
Cross-Pet. 9-10, 19. That decision in no way “strongly 
suggests” that the District of Columbia Circuit “now 
lacks confidence” in its Lead Industries decision. ATA 
Cross-Pet. 17-18. To the contrary, the court concluded 
that EPA should consider economic and technical 
feasibility when setting individual emission standards 
for specific hazardous air pollutants under Section 112 
of the CAA, 42 U.S.C. 7412. It expressly distinguished 
Section 109’s method for promulgating NAAQS. Writ- 
ing for the en banc court, Judge Bork explained that the 
language and structure of the CAA support the conclu- 
sion that “Congress simply did not intend the economics 
of pollution control to be considered in [Section 109’s] 
scheme of ambient air regulations.” 824 F.2d at 1159. 

14 

14 We note that EPA attempts to estimate the costs and bene- 
fits of implementing NAAQS as part of its Regulatory Impact 
Analysis (RIA), but it does so only for informational and imple- 
mentation planning purposes and not as a part of its standard 
setting process. See 62 Fed. Reg. at 38,702; C.A. App. (PM) 3461- 
3462. ATA and APC rely selectively on those estimates to create a 
distorted picture of the potential costs and benefits of the NAAQS 
in this case. For example, APC and ATA cite EPA’s estimate of 
the cost of fully attaining the revised PM standards ($37 billion) 
without mentioning EPA’s estimate that those standards would 
produce quantifiable benefits of $20 to $110 billion. Compare APC 
Cross-Pet. 13 n.23 and ATA Cross-Pet. 4 with C.A. App. (Ozone) 
2925. Nor does either mention EPA’s estimate that the net 
quantifiable benefits to be derived from only partial attainment of 
the combination of the revised PM and ozone NAAQS would range 
from $9.5 to $96 billion. C.A. App. (PM) 3488. Furthermore, it is 
difficult, if not impossible, for EPA to account for the future 
development of innovative control technologies when it sets or 
revises NAAQS. C.A. App. (PM) 3471-3472. Because of the 
technology-forcing character of the NAAQS, EPA has historically 

18 

b. As the foregoing discussion shows, the ATA and 
APC cross-petitions do not present an issue that would 
warrant review in its own right: The court of appeals 
has repeatedly and correctly rejected ATA’s and APC’s 
arguments; those rulings have not produced any dis- 
sent; this Court has repeatedly declined to review the 
issue; and ATA and APC did not seek relief from the en 
banc court before petitioning for a writ of certiorari yet 
again. ATA nevertheless argues that this Court should 
combine its review of the nondelegation issue and this 
particular statutory issue because the issues are 
“inextricably intertwined.” ATA Cross-Pet. 7; see also 
APC Cross-Pet. 4 (cost issue is “fairly within the scope 
of the initial petitions”). That assertion is correct only 
in the haphazard sense that a fishing line might become 
intertwined with a tree limb. Enlarging the grant 
would complicate an already complex case and would 
require the Court to disentangle inquiries that are 
properly separate and that the court of appeals treated 
as distinct. Indeed, the court of appeals panel was 
divided on the nondelegation issue, but unanimous on 
the supposedly “intertwined” statutory issue that ATA 
and APC present. 
ATA concedes, in response to our petition, that Sec- 
tion 109 of the CAA itself does not violate the nondele- 
gation doctrine. 99-1257 ATA Br. 15 (Section 109 is 
“undisputedly” constitutional); see also 99-1257 APC 
Br. 8 (“The court did not hold the statute itself uncon- 
stitutional.”). Significantly, ATA does not contest our 
showing (99-1257 Pet. 11-16) that the CAA provides 
EPA with sufficient statutory direction to avoid 
delegating legislative power. See, e.g., Mistretta v. 

overestimated the actual cost of their implementation and attain- 
ment. See ibid. 

19 

United States, 488 U.S. 361, 372-373 (1989). Instead, 
ATA defends the court of appeals’ decision on the 
ground that EPA’s “interpretation” of the CAA 
violates the nondelegation doctrine. See 99-1257 ATA 
Br. 11; 99-1257 APC Br. 10-11, 13; see also 99-1257 Pet. 
App. 4a (“we find that the construction of the Clean Air 
Act on which EPA relied in promulgating the NAAQS 
at issue here effects an unconstitutional delegation of 
legislative power”). 

Our petition takes specific issue with that proposi- 
tion. See 99-1257 Pet. 16. The nondelegation doctrine 
is a check on Congress’s grant of legislative powers and 
not—as the court of appeals and cross-petitioners 
would have it—a mechanism for controlling an agency’s 
exercise of discretion. See ibid. We are hardly alone in 
that view. See, e.g., 99-1257 Pet. App. 94a (Silberman, 
J., dissenting from the denial of rehearing en banc) 
(“Th[e] purpose [of the nondelegation doctrine] is, of 
course, to ensure that Congress makes the crucial 
policy choices that are carried into law.”); id. at 98a 
(Tatel, J., joined by Edwards, C.J., and Garland, J., 
dissenting from denial of rehearing en banc) (“For 
purposes of constitutional analysis, we thus have no 
need to require that EPA state ‘a far more determinate 
basis for decision’ beyond the intelligible principle 
Congress provided in the Clean Air Act”.). 

We urge the Court to correct that basic conceptual 
error and, in accordance with its usual practice, return 
the case to the court of appeals so that the court can 
conclude its task of properly evaluating EPA’s rule- 
makings under the statutory arbitrary and capricious 
standard set out in Section 307(d)(9) of the CAA, 42 
U.S.C. 7607(d)(9). The Court has no occasion to venture 
further by undertaking belatedly to decide anew a 

20 

question of statutory construction that the court of 
appeals and Congress properly settled long ago. 

ATA presses the Court to go further based on its 
inaccurate characterization of what the court of appeals 
decided. ATA argues that “the court below was forced 
to consider constitutional nondelegation issues because 
that court had misconstrued the Clean Air Act in Lead 
Industries and subsequent cases.” ATA Cross-Pet. 5. 
ATA’s characterization is fantasy. This case generated 
six opinions on panel review and petition for rehearing 
and rehearing en banc, and not a single judge on the 
District of Columbia Circuit expressed ATA’s view of 
the case. Rather, the panel majority and dissenting 
judges treated the nondelegation issue and ATA’s 
statutory issue as distinct and separate questions. 

Specifically, the panel majority declared EPA’s ac- 
tions unconstitutional without reference to Lead Indus- 
tries. 99-1257 Pet. App. 4a. The majority directed EPA 
“to develop a construction of the act that satisfies this 
constitutional requirement,” ibid., and it offered com- 
ment respecting EPA’s options on remand, observing 
that “[c]ost-benefit analysis * * * is not available un- 
der decisions of this court,” id. at 14a-15a. But the 
panel considered ATA’s statutory issue as a separate 
question, and the panel unanimously reaffirmed the 
correctness of Lead Industries, id. at 19a-21a. ATA did 
not challenge the panel’s reaffirmation of Lead Indus- 
tries through a petition for rehearing en banc. There is 
no merit to ATA’s assertion that the nondelegation is- 
sue and the Lead Industries issue are “inextricably 
intertwined.” ATA Cross-Pet. 7. 

The fundamental question here remains whether the 
nondelegation doctrine provides a constitutional limita- 
tion on an agency’s action. See 99-1257 Pet. App. 4a. If 
we are correct that the nondelegation doctrine imposes 

21 

a separation of powers limitation on Congress – and not 
a limitation on an agency’s exercise of administrative 
discretion—then this Court should reverse the court of 
appeals’ decision and remand the case to that court to 
reevaluate EPA’s actions under the proper legal stan- 
dard with the care that befits these important rule- 
makings. If, to the contrary, the court of appeals cor- 
rectly applied the nondelegation doctrine, this Court 
should affirm the court’s judgment remanding the cases 
to EPA so that the agency can “develop a construction 
of the act that satisfies this constitutional requirement.” 
Ibid. In either event, there is no reason for this Court 
to decide ATA’s statutory challenge. The nondele- 
gation ruling and that statutory challenge involve two 
distinct issues—one controversial and one not. They 
are related only in the inchoate sense that “everything 
is related to everything else.” California Div. of Labor 
Standards Enforcement v. Dillingham Const., N.A., 
Inc., 519 U.S. 316, 335 (1997) (Scalia, J., concurring). 

15 

2. CBT’s challenges to the 24-hour primary NAAQS 
for PM2.5 should be denied because the issues CBT 
raises were not addressed by the court below. The 

15 In deference to the Court’s certiorari standards, the federal 
petitioners have limited their petition for a writ of certiorari to the 
nondelegation and the “Subpart 2” issues. They have not chal- 
lenged the court of appeals’ other adverse rulings, even though 
those rulings – such as the court’s decision that EPA must evalu- 
ate the alleged health benefits of smog (99-1257 Pet. App. 44a-49a) 
– stand on a more dubious footing than the settled question that 
ATA and APC seek to raise. The federal petitioners, unlike the 
cross-petitioners here, have limited their petition to issues that 
have broader importance and independently meet this Court’s 
standards for certiorari. The constitutional and finality issues that 
the federal petition presents raise fundamental issues that arise in 
every case in which a court reviews a federal agency’s admini- 
stration of a regulatory program. 

22 

court of appeals concluded that its remand of the ozone 
and PM2.5 NAAQS on nondelegation grounds precluded 
resolution of most of the other challenges before it, 
including CBT’s challenge to the 24-hour PM2.5 primary 
NAAQS. See 99-1257 Pet. App. 4a-5a. There is no war- 
rant for this Court to address an issue that the court of 
appeals did not reach. 

16 

CBT’s challenge to the secondary standards for PM2.5 
should also be denied. The secondary PM2.5 NAAQS, 
like the 24-hour primary PM2.5 NAAQS, were remanded 
to EPA by the court of appeals for reconsideration in 
light of that court’s holding on nondelegation. Thus, the 
court below did not reach “the main thrust” of CBT’s 
challenge, 99-1257 Pet. App. 56a, and there is no reason 

16 CBT’s challenges are, in any event, without merit. CBT’s 
assertion that the 24-hour PM2.5 primary NAAQS is inconsistent 
with EPA’s risk findings rests on a misunderstanding of those 
findings. In challenging the 24-hour PM2.5 primary NAAQS, CBT 
largely assumes that EPA can address the risk from daily or short- 
term peak exposures only through a short-term standard. To the 
contrary, EPA found that it could most effectively reduce the risks 
from both long-term and peak PM2.5 concentrations through an 
annual standard of 15 •g/m3, together with a 24-hour standard to 
address unusual circumstances. 62 Fed. Reg. at 38,669. The 
studies on which EPA relied in setting the standard demonstrated 
a statistically significant correlation between 24-hour PM2.5 concen- 
trations and health effects in cities with annual PM2.5 concentra- 
tions greater than about 16 •g/m3, but did not show such a correla- 
tion in cities with annual PM2.5 concentrations below that level. Id. 
at 38,676. Thus in setting the annual standard just below that 
level, i.e., at 15 •g/m3, EPA has addressed the statistically signifi- 
cant association between health effects and 24-hour PM2.5 expo- 
sures demonstrated by the studies in the record. Id. at 38,669- 
38,671. The 24-hour PM2.5 primary NAAQS (65 •g/m3) serves as an 
additional margin of safety for localized or seasonal exposures that 
might not be adequately controlled by the annual standard alone. 
Id. at 38,671. 

23 

for this Court to address questions that the court of 
appeals did not decide. The court of appeals did decide 
one narrow issue that CBT raises here. The court con- 
cluded, over CBT’s objection, that EPA may take into 
account the mitigating effect of the Regional Haze Pro- 
gram in setting the secondary PM2.5 NAAQS. 

The CAA specifically provides that the purpose of 
the Regional Haze Program is to address adverse visi- 
bility impacts that remain “notwithstanding attainment 
and maintenance of all national ambient air quality 
standards.” 42 U.S.C. 7470(1) (emphasis added). That 
provision makes clear that EPA is not required to set 
the secondary NAAQS at a level that eliminates all 
adverse effects on visibility. There is no reason for this 
Court to review the court of appeals’ ruling, which is 
clearly correct. EPA acted within the scope of its 
authority in relying on the Regional Haze Program to 
mitigate some of the adverse visibility effects associ- 
ated with PM2.5. 99-1257 Pet. App. 57a. 

CONCLUSION 

The conditional cross-petitions for a writ of certiorari 
should be denied. 

Respectfully submitted. 

GARY S. GUZY 

General Counsel 
Environmental Protection 

Agency 
SETH P. WAXMAN 

Solicitor General 

APRIL 2000