No. 99-1257 

In the Supreme Court of the United States 

CAROL M. BROWNER, ADMINISTRATOR OF THE 

ENVIRONMENTAL PROTECTION AGENCY, ET AL., 
PETITIONERS 

v. 

AMERICAN TRUCKING ASSOCIATIONS, INC., ET AL. 

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

PETITION FOR A WRIT OF CERTIORARI 

GARY S. GUZY 

General Counsel 

ROBERT G. DREHER 

Deputy General Counsel 

GERALD K. GLEASON 
MICHAEL L. GOO 
AMEY W. MARRELLA 
JAN M. TIERNEY 
KEVIN W. MCLEAN 

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 

DAVID J. KAPLAN 
MARY F. EDGAR 

Attorneys 

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

QUESTIONS PRESENTED 

1. Whether Section 109 of the Clean Air Act, 42 
U.S.C. 7409, as interpreted by the Environmental Pro- 
tection Agency (EPA) in setting revised National 
Ambient Air Quality Standards (NAAQS) for ozone and 
particulate matter, effects an unconstitutional delega- 
tion of legislative power. 

2. Whether the court of appeals exceeded its 
jurisdiction by reviewing, as a final agency action that 
is ripe for review, EPA’s preliminary preamble state- 
ments on the scope of the agency’s authority to 
implement the revised “eight-hour” ozone NAAQS. 

3. Whether provisions of the Clean Air Act Amend- 
ments of 1990 specifically aimed at achieving the long- 
delayed attainment of the then-existing ozone NAAQS 
restrict EPA’s general authority under other provi- 
sions of the CAA to implement a new and more protec- 
tive ozone NAAQS until the prior standard is attained. 

(I) 

II 
PARTIES TO THE PROCEEDING 

1. Petitioners are the respondents in the court of 
appeals: Carol M. Browner, the Administrator of the 
Environmental Protection Agency, and the Environ- 
mental Protection Agency (EPA). 

The following parties intervened in support of EPA 
in the court of appeals: the American Lung Associa- 
tion, the Commonwealth of Massachusetts and the 
State of New Jersey. 

The following States appeared as amici curiae in sup- 
port of EPA in the court of appeals: New York, Con- 
necticut, New Hampshire and Vermont. 

2. Respondents are the petitioners in the court of 
appeals: 
Alliance of Automobile Manufacturers (formerly 
American Automobile Manufacturers Association) 
American Farm Bureau Federation 
American Forest and Paper Association 
American Iron and Steel Institute 
American Petroleum Association 
American Portland Cement Alliance 
American Public Power Association 
American Trucking Associations, Inc. 

Appalachian Power Company 
Baltimore Gas and Electric Company 
James Bassage 
Burns Motor Freight, Inc. 

Carolina Power & Light Company 
Centerior Energy Corporation 
Central and South West Services, Inc. 
Central Hudson Gas & Electric Corporation 
Central Illinois Light Company 
Central Illinois Public Service Company 
Central Power & Light Company 

III 

Chamber of Commerce of the United States of 
America 

Chemical Manufacturers Association 
CINergy Corporation 
Citizens for Balanced Transportation 
Cleveland Electric Company 
Columbus Southern Power Company 
ComEd Company 
Consumers Energy Company 
Dayton Power & Light Company 
Delmarva Power & Light Company 
The Detroit Edison Company 
Duke Energy Company 
Duquesne Light Company 
Edison Electric Institute 
Equipment Manufacturers Institute 
FirstEnergy Corporation 
Florida Power Corporation 
Garner Trucking, Inc. 

Genie Trucking Line, Inc. 
Gloucester Company, Inc. 
Michael Gregory 
Idaho Mining Association 
Illinois Power Company 
Indiana Michigan Power Company 
Indianapolis Power & Light Company 
Jacksonville Electric Authority 
Judy’s Bakery, Inc. 

Kansas City Power & Light Company 
Kennecott Energy and Coal Company 
Kennecott Holdings Corporation 
Kennecott Services Company 
Kentucky Power Company 
Kentucky Utilities Company 
Louisville Gas and Electric Company 

IV 

Madison Gas and Electric Company 
David Matusow 
Brian McCarthy 
Meridian Gold Company 
The State of Michigan 
Midwest Ozone Group 
Minnesota Power 
Monongahela Power Company 
National Association of Manufacturers 
National Association of Home Builders 
National Automobile Dealers Association 
National Coalition of Petroleum Retailers 
National Indian Business Association 
National Mining Association 
National Paint and Coatings Association 
National Petrochemical & Refiners Association 
National Rural Electric Cooperative Association 
National Stone Association 
National Small Business United 
Nevada Mining Association 
Newmont Gold Company 
Non-Ferrous Founders Society 
Northern Indiana Public Service Company 
Oglethorpe Power Corporation 
The State of Ohio 
Ohio Edison Company 
Ohio Power Company 
Ohio Valley Electric Corporation 
Oklahoma Gas & Electric Company 
PacifiCorp 
Phoenix Cement Company 
Plains Electric Generation & Transmission Coopera- 
tive, Inc. 

The Potomac Edison Company 
Potomac Electric Power Company 

V 

PP&L Resources 
Public Service Company of New Mexico 
Richard Romero 
Salt River Project Agricultural Improvement & 
Power District 

Small Business Survival Committee 
South Carolina Electric & Gas Company 
Southern Company 
Tampa Electric Company 
Toledo Edison Company 
Union Electric Company 
United Mine Workers of America, AFL-CIO 
Virginia Power 
Western Fuels Association 
West Penn Power Company 
The State of West Virginia 
West Virginia Chamber of Commerce 
Wisconsin Electric Power Company 

The following parties intervened in support of peti- 
tioners American Trucking Ass’ns, et al., in the court of 
appeals: 

American Road and Transportation Builders 
Association 

Atlantic City Electric Company 
Texas Gas Transmission Corporation 

The following persons appeared as amici curiae in 
support of petitioners American Trucking Ass’ns, et al., 
in the court of appeals: 

Representative Tom Bliley 
Senator Orrin G. Hatch 

TABLE OF CONTENTS 

Page 

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

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

Constitutional, statutory and regulatory provisions 

involved ................................................................................... 2 

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

Reasons for granting the petition ............................................... 
9 

Conclusion ....................................................................................... 30 

TABLE OF AUTHORITIES 

Cases: 

A.L.A. Schechter Poultry Corp. v. United States, 

295 U.S. 495 (1935) ............................................................ 

12, 14 

Abbott Labs. v. Gardner, 387 U.S. 136 (1967) ................... 

24 

American Airlines, Inc. v. Herman, 176 F.3d 283 

(5th Cir. 1999) ......................................................................... 

23 

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

1998), cert. denied, 120 S. Ct. 58 (1999) ............................. 

10 

American Petroleum Inst. v. Costle, 665 F.2d 1176 

(D.C. Cir. 1981), cert. denied, 455 U.S. 1034 (1982) ......... 

10 

American Power & Light Co. v. SEC, 329 U.S. 90 

(1946) ................................................................... 

12, 13, 14, 17 

Bennett v. Spear, 520 U.S. 154 (1997) ................................ 

21 

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

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

16, 24, 25, 28, 29 

Dow Chem. Co. v. EPA, 832 F.2d 319 (5th Cir. 1987) ..... 

22 

FPC v. Conway Corp., 426 U.S. 271 (1976) .................... 

12, 18 

Hindes v. FDIC, 137 F.3d 148 (3d Cir. 1998) .................... 

23 

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

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

10, 15 

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

12 

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

13, 16 

Mobil Exploration & Producing U.S., Inc. v. Depart- 
ment of the Interior, 180 F.3d 1192 (10th Cir. 1999) ...... 23 

(VII) 

VIII 

Cases—Continued: Page 

Montana-Dakota Util. Co. v. Northwestern Pub. Serv. 

Co., 341 U.S. 246 (1951) ..................................................... 

18-19 

NBC v. United States, 319 U.S. 190 (1943) ....................... 

12 

Natural Resources Defense Council, Inc. v. EPA, 

902 F.2d 962 (1990) , opinion vacated in part, 921 F.2d 

326 (D.C. Cir.), cert. denied, 498 U.S. 1082 (1991) ....... 

10, 19 

Ohio Forestry Ass’n v. Sierra Club, 523 U.S. 726 

(1998) .................................................................................... 

24, 25 

Reno v. Catholic Soc. Servs., Inc., 509 U.S. 43 (1993) ..... 

24 

Skinner v. Mid-America Pipeline Co., 490 U.S. 212 

(1989) .................................................................................... 

12, 13 

South Terminal Corp. v. EPA, 504 F.2d 646 (1st Cir. 

1974) ......................................................................................... 19 

Touby v. United States, 500 U.S. 160 (1991) ................. 

12, 14 

U.S. Bancorp Mortgage Co. v. Bonner Mall Partner- 
ship, 513 U.S. 18 (1994) ........................................................ 

25 

Vermont Yankee Nuclear Power Co. v. Natural Re- 
sources Defense Council, Inc., 435 U.S. 519 (1978) ........ 

17 

Western Ill. Home Health Care, Inc. v. Herman, 

150 F.3d 659 (7th Cir. 1998) ................................................. 

23 

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

12, 13 

Constitution and statutes: 

U.S. Const.: 

Art. I ........................................................................................ 

2 

§ 8, Cl. 18 ............................................................................. 
16 

Art. III ..................................................................................... 
24 

Act of Nov. 15, 1990, Pub. L. No. 101-549, 104 Stat. 
2399 ......................................................................................... 4 

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

2 

§ 107, 42 U.S.C. 7407 ......................................................... 
26, 27 

§ 107(d), 42 U.S.C. 7407(d) ....................... 
20, 22, 24, 26, 27, 28 

§ 107(d)(1), 42 U.S.C. 7407(d)(1) .......................................... 
4, 24 

§ 107(d)(1)(C), 42 U.S.C. 7407(d)(1)(C) .............................. 
28 

§ 107(d)(4)(A), 7407(d)(4)(A) ................................................ 
28 

§ 108, 42 U.S.C. 7408 ............................................................. 
4 

§ 108(a)(1)(A)-(B), 42 U.S.C. 7408(a)(1)(A)-(B) ................ 13 

IX 

Statutes—Continued: Page 

§ 108(a)(2), 42 U.S.C. 7408(a)(2) .......................................... 
3, 13 

§ 108(a)(2)(A)-(B), 42 U.S.C. 7408(a)(2)(A)-(B) ................ 
13 

§ 109, 42 U.S.C. 7409 ......................... 
2, 3, 4, 7, 9, 13, 16, 18, 19 

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

3 

§ 109(b)(1), 42 U.S.C. 7409(b)(1) .................................... 
3, 7, 13 

§ 109(d), 42 U.S.C. 7409(d) ................................................... 
26 

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

§ 109(d)(2), 42 U.S.C. 7409(d)(2) .......................................... 
13 

§ 109(d)(2)(B), 42 U.S.C. 7409(d)(2)(B) .............................. 
11 

§ 110, 42 U.S.C. 7410 ............................................................. 
4, 20 

§ 172, 42 U.S.C. 7502 .................................................. 
5, 7, 24, 25 

§ 172(a), 42 U.S.C. 7502(a) ..................................... 
4, 20, 22, 26 

§ 172(a)(1)(B), 42 U.S.C. 7502(a)(1)(B) ............................... 
20 

§ 172(a)(1)(C), 42 U.S.C. 7502(a)(1)(C) ........................... 
26, 28 

§ 172(a)(2), 42 U.S.C. 7502(a)(2) .......................................... 
29 

§ 172(a)(2)(D), 42 U.S.C. 7502(a)(2)(D) .......................... 
26, 28 

§ 172(c), 42 U.S.C. 7502(c) .................................................... 
4 

§ 181, 42 U.S.C. 7511 ................................................ 
7, 8, 24, 25 

§ 181(a), 42 U.S.C. 7511(a) ....................................... 
7, 21, 26, 28 

§ 181(a)(1), 42 U.S.C. 7511(a)(1) ..................... 
5, 20, 26, 29, 30 

§ 181(a)(3), 42 U.S.C. 7511(a)(3) .......................................... 
20 

§ 181(a)(5), 42 U.S.C. 7511(a)(5) .......................................... 
30 

§§ 181-191, 42 U.S.C. 7511-7514 .......................................... 
26 

§§ 181-192, 42 U.S.C. 7511-7514a ........................................ 
5 

§ 302(h), 42 U.S.C. 7602(h) ................................................... 
3 

§ 307(b), 42 U.S.C. 7607(b) ........................................... 
2, 19, 29 

§ 307(b)(1), 42 U.S.C. 7607(b)(1) .......................................... 
20 

§ 307(d), 42 U.S.C. 7607(d) ................................................... 
14 

§ 307(d)(3), 42 U.S.C. 7607(d)(3) .......................................... 
14 

§ 307(d)(6)(b), 42 U.S.C. 7607(d)(6)(b) ................................ 
14 

§ 307(d)(9), 42 U.S.C. 7607(d)(9) .......................................... 
14 

Miscellaneous: 

61 Fed. Reg. (1996): 

p. 65,716 ................................................................................. 

14 

pp. 65,719-65,721 .................................................................... 
14 

pp. 65,727-65,728 .................................................................... 14 

X 

Miscellaneous—Continued: Page 

62 Fed. Reg. (1997): 
pp. 38,579-38,655 .................................................................... 
5 

p. 38,652 ................................................................................. 
3, 5 

p. 38,653 ................................................................................. 
3 

p. 38,654 ................................................................................. 
3 

pp. 38,656-38,666 .................................................................... 
14 

pp. 38,666-38,667 .................................................................... 
3 

pp. 38,674-38,675 .................................................................... 
14 

pp. 38,674-38,677 .................................................................... 
14 

p. 38,856 ................................................................................. 
5 

pp. 38,859-38,878 .................................................................... 
6 

pp. 38,884-38,885 ............................................................ 
8, 21, 27 

H.R. Rep. No. 294, 95th Cong., 1st Sess. (1977) .................. 
15 

S. Rep. No. 1196, 91st Cong., 2d Sess. (1970) ...................... 
15 

1 Staff of the Senate Comm. on Pub. Works, 93d Cong., 
2d Sess., A Legislative History of the Clean Air 
Act Amendments of 1970 (Comm. Print 1974) ................. 15 

In the Supreme Court of the United States 

No. 99-1257 

CAROL M. BROWNER, ADMINISTRATOR OF THE 

ENVIRONMENTAL PROTECTION AGENCY, ET AL., 
PETITIONERS 

v. 

AMERICAN TRUCKING ASSOCIATIONS, INC., ET AL. 

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

PETITION FOR A WRIT OF CERTIORARI 

The Solicitor General, on behalf of Carol M. Browner, 
Administrator of the Environmental Protection Agency, 
et al. (EPA), respectfully petitions for a writ of certio- 
rari to review the judgments of the United States 
Court of Appeals for the District of Columbia Circuit in 
these two sets of identically-captioned consolidated 
cases. 

OPINIONS BELOW 

The opinion of the court of appeals (Pet. App. 1a-69a) 
is reported at 175 F.3d 1027. The opinion on petitions 
for rehearing and dissenting statements on denial of 
rehearing en banc (Pet. App. 70a-102a) 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 juris- 
diction of this Court is invoked under 28 U.S.C. 1254(1). 

(1) 

2 

CONSTITUTIONAL, STATUTORY AND REGULATORY 
PROVISIONS INVOLVED 

Article 1 of the United States Constitution states in 
pertinent part as follows: 

All legislative Powers herein granted shall be 
vested in a Congress of the United States. 

The relevant sections of the Clean Air Act, 42 U.S.C. 
7401 et seq., are set forth in the Appendix at Pet. App. 
105a-126a. 

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

STATEMENT 

Respondents American Trucking Associations, Inc., 
et al. (ATA), petitioned under Section 307(b) of the 
Clean Air Act (CAA), 42 U.S.C. 7607(b), for review of 
two final EPA rules establishing revised National Am- 
bient Air Quality Standards (NAAQS) for particulate 
matter and ozone under Section 109 of the CAA, 42 
U.S.C. 7409. On May 14, 1999, the court of appeals is- 
sued a single opinion for the two sets of consolidated 
cases. No. 97-1440 (particulate matter); No. 97-1441 
(ozone). A divided panel found that Section 109 of the 
CAA, 42 U.S.C. 7409, as interpreted by EPA in setting 
the ozone and particulate matter NAAQS, effected an 
unconstitutional delegation of legislative authority. 
The court remanded both rules with instructions that 
EPA should articulate an “intelligible principle” for 
determining the degree of residual risk to public health 
permissible in setting revised NAAQS. Although EPA 
had taken no final agency action to implement the 
revised ozone NAAQS, the court also issued an opinion, 
later modified, on the scope of EPA’s implementation 
authority. 

3 

1. The CAA directs EPA to promulgate NAAQS, 
which establish the maximum permissible levels, in the 
outside air, of a limited number of pervasive pollutants 
that have adverse effects on public health and welfare. 
CAA § 109, 42 U.S.C. 7409. Section 109 directs EPA to 
promulgate “primary” NAAQS to protect human health 
and “secondary” NAAQS to protect “public welfare.” 
See CAA § 109(b), 42 U.S.C. 7409(b). See also CAA 
§ 302(h), 42 U.S.C. 7602(h) (defining welfare interests). 
EPA has promulgated NAAQS for six pollutants: sulfur 
dioxide, carbon monoxide, nitrogen oxide, lead, ozone, 
and particulate matter (PM).1 
The CAA directs EPA to establish NAAQS at spe- 
cific levels. Primary NAAQS must be set at levels that, 
“in the judgment of the [EPA] Administrator, * * * 
and allowing an adequate margin of safety, are requi- 
site to protect the public health.” CAA § 109(b)(1), 42 
U.S.C. 7409(b)(1). Secondary NAAQS must be set at 
levels that, “in the judgment of the Administrator,” are 
“requisite to protect the public welfare from any known 
or anticipated adverse effects.” CAA § 109(b)(1), 42 
U.S.C. 7409(b)(1). In making those judgments, EPA 
must develop and rely on “air quality criteria” that 
“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 [a] pollutant in the ambi- 
ent air.” CAA § 108(a)(2), 42 U.S.C. 7408(a)(2). EPA 
must review the air quality criteria and NAAQS every 

1 PM embraces airborne particles of varying size and composi- 
tion. See NAAQS for Particulate Matter, 62 Fed. Reg. 38,652, 
38,653 (1997). PM10 denotes inhalable particulate matter up to ap- 
proximately 10 micrometers in diameter, while PM2.5 denotes PM 
up to approximately 2.5 micrometers in diameter. See 62 Fed. 
Reg. at 38,654 n.1, 38,666-38,667. 

4 

five years and revise them as “appropriate” in accor- 
dance with Sections 108 and 109. 42 U.S.C. 7409(d)(1). 

The CAA sets out an implementation process, resting 
on principles of federal-state cooperation, to ensure that 
the air throughout the Nation “attains” the NAAQS. 
Within three years of promulgating a new or revised 
NAAQS, EPA must “designate” prescribed areas of the 
country as either attainment areas or nonattainment 
areas for each NAAQS pollutant depending on whether 
the NAAQS has been met. CAA § 107(d)(1), 42 U.S.C. 
7407(d)(1). Once EPA designates an area as nonattain- 
ment for a NAAQS, EPA must establish the date by 
which the nonattainment area must attain the NAAQS 
in question (the attainment date). See generally CAA 
§ 172(a), 42 U.S.C. 7502(a). The States are generally 
responsible for determining what measures are neces- 
sary within their borders to achieve and maintain the 
NAAQS. The CAA allows each State to develop, for 
approval by EPA, a State Implementation Plan (SIP) 
that sets forth pollution control measures necessary, 
among other things, for nonattainment areas within the 
State to attain all NAAQS by the applicable attainment 
dates. See CAA §§ 110, 172(c), 42 U.S.C. 7410, 7502(c). 

Congress has amended the CAA on several occa- 
sions, including an extensive revision in 1990. See Pub. 
L. No. 101-549, 104 Stat. 2399 (the 1990 Amendments). 
The 1990 Amendments recognized, among other things, 
that many areas of the country had failed to attain the 
existing NAAQS, including the primary ozone NAAQS, 
set in 1979, of 0.12 parts per million (ppm) averaged 
over one hour (the one-hour standard). The 1990 
Amendments revised the CAA’s implementation pro- 
cess in certain respects, creating a new procedure for 
classifying nonattainment areas based upon pertinent 
factors (such as the severity of the nonattainment prob- 
lem) and revising the method for setting attainment 

5 

dates. See generally CAA § 172, 42 U.S.C. 7502. The 
1990 Amendments also imposed specific implementa- 
tion measures for areas designated nonattainment for 
various pollutants. See CAA §§ 181-192, 42 U.S.C. 
7511-7514a In the case of ozone, the 1990 Amendments 
established mandatory classifications and attainment 
dates for the primary one-hour ozone standard. See 
CAA § 181(a)(1), 42 U.S.C. 7511(a)(1). 

2. In July 1997, after extensive rulemaking proceed- 
ings, EPA issued revised NAAQS for particulate 
matter and ozone in light of new scientific knowledge 
about the adverse health effects of those pollutants. 
See NAAQS for Particulate Matter, 62 Fed. Reg. 38,652 
(1997); NAAQS for Ozone, 62 Fed. Reg. at 38,856.2 

a. EPA found that the 1987 NAAQS for particulate 
matter, which employed the indicator PM10 to regulate 
all inhalable particles (see note 1, supra), were inade- 
quate to protect public health. EPA based its finding 
on more than 60 epidemiological studies showing seri- 
ous adverse health effects at particulate matter con- 
centrations below the 1987 NAAQS. Those health 
effects included premature death, increased hospital 
admissions, and respiratory illnesses, particularly 
among the elderly, people with respiratory and cardio- 
vascular diseases, asthmatics, and children. EPA found 
that the health effects observed at concentrations 
below the 1987 NAAQS were likely associated with 
“fine” particles (PM2.5) and therefore revised the 1987 
NAAQS to establish new PM2.5 standards. EPA also 
revised the PM10 standards to continue to address other 
health effects from larger (coarse) particles. See 62 
Fed. Reg. at 38-579-38,655. 

2 Copies of those Federal Register notices have been lodged 
with the Clerk of the Court. 

6 

b. Similarly, EPA found that the 1979 one-hour 
ozone NAAQS was inadequate to protect public health 
based on clinical studies and other evidence linking 
prolonged ozone exposures (from six to eight hours) to 
numerous adverse health effects, including decreases in 
lung function, coughs and chest pain, potential aggrava- 
tion of asthma, lung inflammation, increased suscep- 
tibility to respiratory infection, increased doctor and 
emergency room visits and hospitalizations, and possi- 
ble permanent lung damage from repeated exposures. 
Children and asthmatics are particularly at risk. EPA 
therefore promulgated a more stringent ozone NAAQS 
of 0.08 ppm, averaged over an eight-hour period (the 
eight-hour standard). See 62 Fed. Reg. at 38,859- 
38,878. 

3. Numerous industry groups, a public interest 
group, and several States and individuals challenged 
the revised particulate matter and ozone NAAQS. The 
court of appeals rejected many of the challenges, but 
nevertheless remanded the revised NAAQS to EPA 
and instructed the agency to “develop a constitutional 
construction of the act.” Pet. App. 4a, 5a. Relying on a 
theory that was not extensively briefed by the parties, 
the court found that EPA’s interpretation of Section 
109 of the CAA “effects an unconstitutional delegation 
of legislative power.” Id. at 4a. The majority reasoned 
that, because there is no scientifically determinable 
“threshold” below which adverse health effects from 
ozone can be ruled out, and because there “likely” is no 
similar threshold for PM, EPA must provide a “deter- 
minate criterion for drawing lines” for any “non-zero” 
standard. Id. at 5a-6a. According to the majority, 
EPA’s interpretation of the CAA leaves it “free to pick 
any point between zero and a hair below * * * 
London’s Killer Fog,” a notorious 1952 incident in which 
approximately 4000 deaths over four days were attrib- 

7 

uted to air pollution. Id. at 13a. Judge Tatel dissented 
from that portion of the opinion, emphasizing that the 
majority “ignore[d] the last half-century of Supreme 
Court nondelegation jurisprudence” upholding numer- 
ous congressional enactments containing fewer guiding 
principles than Section 109. Id. at 59a. 

In the ozone case, the court of appeals rejected the 
industry petitioners’ argument that Congress’s 1990 
Amendments to the CAA, which established mandatory 
classifications and attainment dates for the primary 
one-hour ozone standard then in effect, see CAA § 181, 
42 U.S.C. 7511, precluded EPA from revising the ozone 
NAAQS. Pet. App. 34a-37a. That ruling resolved the 
issue before the court. The court of appeals neverthe- 
less went on to direct what EPA may and may not do 
when it proceeds—in the future—to implement the 
ozone NAAQS. The court ruled that EPA cannot set 
nonattainment classifications and attainment dates for 
the revised ozone NAAQS through Section 172 (42 
U.S.C. 7502), but must instead employ the classifica- 
tions and attainment dates set out in Section 181(a) (42 
U.S.C. 7511(a)), and this precluded EPA from imple- 
enting a more protective ozone NAAQS. Pet. App. 34a, 
37a-44a. 

3 

4. EPA and other parties filed petitions for re- 
hearing and suggestions for rehearing en banc. The 
panel denied EPA’s petition for rehearing on the non- 
delegation issue. Pet App. 72a. It expressly rejected 
EPA’s view that the relevant provisions of the CAA, 

3 The court of appeals resolved some, but not all, of the other 
challenges to EPA’s rules. See Pet. App. 4a-5a. The court con- 
cluded that “[t]he remaining issues cannot be resolved until such 
time as EPA may develop a constitutional construction of the act 
(and, if appropriate, modify the disputed NAAQS in accordance 
with that construction).” Id. at 5a. 

8 

including Section 109(b)(1)’s direction that NAAQS 
must be based on air quality criteria and “set at levels 
requisite to protect the public health,” 42 U.S.C. 
7409(b)(1), set out intelligible principles that limit the 
agency’s discretion. Pet. App. 72a-89a. Judge Tatel 
dissented. Id. at 89a. 

In the ozone case, the panel granted rehearing in 
part, to modify its opinion regarding EPA’s authority to 
implement the revised NAAQS. Pet. App. 71a-72a, 76a- 
82a. The panel rejected EPA’s argument that, because 
EPA had yet to take final action implementing the 
revised NAAQS, the court lacked jurisdiction to 
consider which provision of the CAA would govern 
EPA’s implementation, including the specification of 
classifications and attainment dates. Id. at 77a-79a. 
The court found that EPA’s statements on that issue in 
the regulatory preamble accompanying the revised 
ozone NAAQS, made in response to industry comments 
challenging EPA’s authority to promulgate that 
standard, see 62 Fed. Reg. at 38,884-38,885, constituted 
final agency action on the question of implementation 
that was ripe for judicial review. Pet. App. 77a-79a. On 
the merits, the panel modified its opinion to state that 
“EPA can enforce a revised primary ozone NAAQS 
only in conformity with [Section 181].” Id. at 81a. 
Judge Tatel wrote separately because he disagreed 
with the panel’s reasoning. Id. at 83a-89a. He found 
the statute ambiguous and would have deferred to 
EPA’s interpretation. Id. at 84a. Judge Tatel 
nevertheless concurred in the judgment because, in his 
view, the modified decision allows EPA to implement 
the revised ozone NAAQS in a nonattainment area once 
the area has attained the one-hour standard in 
accordance with Section 181. Id. at 89a. 

The court also denied EPA’s suggestion for rehearing 
en banc, with five of the court’s eleven active judges 

9 

(Chief Judge Edwards, and Judges Silberman, Rogers, 
Tatel, and Garland) voting in favor of rehearing en 
banc, and four (Judges Williams, Ginsburg, Sentelle, 
and Randolph) voting against it. Pet. App. 90a-92a. 
Judge Silberman and Judge Tatel each wrote a state- 
ment dissenting from the denial of rehearing en banc on 
the nondelegation issue. Id. at 92a-96a (Silberman, J., 
dissenting); id. at 97a-99a (Tatel, J., dissenting). Chief 
Judge Edwards and Judge Garland joined in Judge 
Tatel’s statement. Id. at 97a. 

REASONS FOR GRANTING THE PETITION 

The court of appeals has rejected EPA’s revision of 
the particulate matter and ozone NAAQS, ruling that 
Section 109 of the CAA as interpreted by EPA effects 
an unconstitutional delegation of legislative power. The 
court’s decision presents an issue of immense practical 
importance to the health of the American public. In 
addition, the court’s ruling raises issues of extraordi- 
nary governmental concern. First, the court’s decision 
represents a radical departure from settled law re- 
specting the nondelegation doctrine. The court’s ruling 
conflicts with this Court’s decisions upholding congres- 
sional enactments containing far broader grants of 
authority than that contained in Section 109 and, as a 
consequence, raises questions respecting the constitu- 
tionality of a broad range of federal statutes requiring 
agencies to draw lines based on scientific judgments. 
Second, the court’s approach would unjustifiably ex- 
pand the role of the courts in reviewing agency action. 
In this instance, the court has directed EPA to revisit 
and artificially narrow the discretion that EPA has 

10 

previously been entitled to exercise under Section 109 
of the CAA.4 

The court’s decision respecting EPA’s authority to 
implement a revised ozone NAAQS also warrants re- 
view. The court’s ruling is not only important from a 
public health perspective, but also raises a core juris- 
dictional question of far-reaching significance. The 
court adopted a test for finality that is inconsistent with 
the test applied by this Court and other courts of 
appeals. Furthermore, by asserting jurisdiction before 
the agency action is ripe for review, the court of appeals 
has deprived EPA of the opportunity to develop fully 
its interpretation and to reconcile any tensions that 
may arise in the future respecting implementation of 
the revised NAAQS. 

The court’s premature review of EPA’s implementa- 
tion authority has also resulted in an erroneous 
resolution of the merits, which additionally warrants 
this Court’s review. The court’s mistaken interpreta- 
tion would inappropriately force EPA to delay pro- 
tecting the public from the very health consequences 

4 As Judge Tatel observed, “[t]he Act has been parsed by [the 
District of Columbia Circuit] no fewer than ten times in published 
opinions delineating EPA authority in the NAAQS-setting pro- 
cess.” Pet. App. 59a. See, e.g., American Lung Ass’n v. EPA, 134 
F.3d 388, 389, 392 (D.C. Cir. 1998) (sulfur dioxide), cert. denied, 120 
S. Ct. 58 (1999); Natural Resources Defense Council, Inc. v. EPA, 
902 F.2d 962, 969 (1990) (particulate matter), opinion vacated in 
part, 921 F.2d 326 (D.C. Cir.), cert. denied, 498 U.S. 1082 (1991); 
American Petroleum Inst. v. Costle, 665 F.2d 1176, 1185 (D.C. Cir. 
1981) (ozone), cert. denied, 455 U.S. 1034 (1982); Lead Indus. Ass’n 

v. EPA, 647 F.2d 1130, 1161 (D.C. Cir.) (lead), cert. denied, 449 
U.S. 1042 (1980). The majority acknowledged that those decisions 
recognized EPA’s broad discretion to make policy judgments in 
setting NAAQS, but summarily discounted their relevance on the 
ground that “none of those panels addressed the claim of undue 
delegation that we face here.” Pet. App. 12a. 

11 

that warrant a NAAQS revision in the first place, until 
areas attain an air quality standard that EPA has 
concluded is inadequate to protect public health. 

1. The court of appeals’ rejection of EPA’s revised 
NAAQS for particulate matter and ozone presents an 
important federal question with profound implications 
for the health of the American public and the effective- 
ness of the CAA. Because the NAAQS are the founda- 
tion of key CAA programs, the current uncertainty 
regarding the validity of the revised PM2.5 and ozone 
NAAQS will disrupt federal and state programs to 
achieve and maintain air quality. Based on the latest 
scientific knowledge, EPA has determined that the pre- 
existing PM and ozone standards are inadequate to 
protect public health. The Clean Air Scientific Advi- 
sory Committee (CASAC)—a body created by Con- 
gress to render independent scientific advice on 
NAAQS decisions, 42 U.S.C. 7409(d)(2)(B)—has con- 
curred in EPA’s scientific findings in that regard. The 
court of appeals’ decision frustrates EPA’s efforts to 
revise the PM and ozone NAAQS and thus unnecessar- 
ily prolongs the exposure of millions of Americans to 
unhealthy pollutant levels. See, e.g., Pet. App. 56a 
(finding that evidence in the rulemaking record “amply 
justifies establishment of new fine particle standards”). 

a. The court of appeals’ decision is a striking depar- 
ture from this Court’s nondelegation jurisprudence. 
Section 109’s grant of authority is “far more specific 
than the sweeping statutory delegations consistently 
upheld by the Supreme Court for more than sixty 
years.” Pet. App. 97a (Tatel, J., dissenting from denial 
of rehearing en banc); see also id. at 93a (Silberman, J., 
dissenting from denial of rehearing en banc) (Section 

12 

109 does not “raise a serious constitutional problem”).5 
The court has overlooked this Court’s instruction that 
the starting point for analysis of a nondelegation claim 
should be the statute’s language, purpose, history, and 
context. American Power & Light Co. v. SEC, 329 U.S. 
90, 104 (1946).6 The majority brushed aside the CAA’s 
terms in two conclusory sentences, holding that the 
statute, as interpreted by EPA, is unconstitutional 
because it does not provide a “determinate criterion for 
drawing lines.” Pet. App. 6a.7 

This Court has repeatedly held that Congress does 
not violate the Constitution “merely because it legis- 
lates in broad terms, leaving a certain degree of discre- 
tion to executive or judicial actors.” Touby v. United 
States, 500 U.S. 160, 165 (1991); see, e.g., Yakus, 321 

5 Skinner v. Mid-America Pipeline Co., 490 U.S. 212, 218-219 
(1989), cites pertinent examples: Lichter v. United States, 334 U.S. 
742, 778-786 (1948) (recovery of “excessive profits” on military con- 
tracts); American Power & Light Co., 329 U.S. at 104 (prevention 
of “unfair[] or inequitable[]” distribution of security holder voting 
power); Yakus v. United States, 321 U.S. 414, 420 (1944) (setting of 
“fair and equitable” commodities prices); FPC v. Hope Natural 
Gas Co., 320 U.S. 591, 600-601 (1944) (determination of “just and 
reasonable rate”); NBC v. United States, 319 U.S. 190, 225-226 
(1943) (regulation of broadcast licensing in “the public interest”). 

6 The threshold question in the Court’s previous nondelegation 
cases, including A.L.A. Schechter Poultry Corp. v. United States, 
295 U.S. 495 (1935), has been whether Congress has authorized the 
agency to exercise nondelegable legislative functions. Id. at 530 
(“[W]e look to the statute to see whether Congress has over- 
stepped these limitations * * * [or] has itself established the 
standards of legal obligation, thus performing its essential legisla- 
tive function.”). 

7 See Pet. App. 5a (“EPA appears to have articulated no ‘intel- 
ligible principle’ to channel its application of [public health factors]; 
nor is one apparent from the statute.”); id. at 14a (“Where (as here) 
statutory language and an existing agency interpretation involve 
an unconstitutional delegation of power * * *.”). 

13 

U.S. at 425 (Congress may authorize agencies to engage 
in activities that “call for the exercise of judgment, and 
for the formulation of subsidiary administrative policy 
within the prescribed statutory framework”). It is 
“ ‘ constitutionally sufficient if Congress clearly deline- 
ates the general policy, the public agency which is to 
apply it, and the boundaries of this delegated author- 
ity.’ ” 

Mistretta v. United States, 488 U.S. 361, 372-373 
(1989) (quoting American Power & Light Co., 329 U.S. 
at 105); Skinner, 490 U.S. at 218-219. 

Had the court fully considered the terms of the stat- 
ute, its history, purpose, and context, the court would 
have found that Section 109 amply satisfies that test. 
Section 109(b)(1) of the Act requires that primary 
NAAQS be set at levels “requisite to protect the public 
health” with an “adequate margin of safety.” 42 U.S.C. 
7409(b)(1). To warrant the setting of a NAAQS, a 
pollutant must “reasonably be anticipated to endanger 
public health or welfare” and be emitted from “numer- 
ous or diverse * * * sources.” CAA § 108(a)(1)(A)-(B), 
42 U.S.C. 7408(a)(1)(A)-(B). Each NAAQS must be 
based on “air quality criteria” that reflect “the latest 
scientific knowledge,” 42 U.S.C. 7408(a)(2), including 
information on “variable factors” that “may alter the 
effects on public health,” as well as interactions with 
other pollutants “to produce an adverse effect on public 
health or welfare.” 42 U.S.C. 7408(a)(2)(A)-(B). Fur- 
ther, the CAA establishes and prescribes the composi- 
tion of CASAC and requires EPA to develop the “crite- 
ria” with extensive CASAC review. CAA § 109(d)(2), 
42 U.S.C. 7409(d)(2).8 

8 The CAA’s directives plainly require a high degree of protec- 
tion and cannot reasonably be construed, as the court claimed, to 
allow EPA such broad discretion as to authorize pollutant levels 
ranging from zero to “a hair below” the infamous London Killer 

14 

Moreover, Congress has prescribed rulemaking pro- 
cedures through Section 307(d) of the CAA that ensure 
extensive public participation and the availability of 
arbitrary-and-capricious review for EPA’s NAAQS 
decisions. See 42 U.S.C. 7607(d). EPA must discuss 
the data, methodology, and major legal and policy inter- 
pretations underlying proposed NAAQS and explain 
any significant departure from CASAC’s advice, 42 
U.S.C. 7607(d)(3); respond to significant comments, 42 
U.S.C. 7607(d)(6)(b); and provide a reasoned explana- 
tion adequate to withstand judicial review. 42 U.S.C. 
7607(d)(9). The availability of such review weighs 
strongly in favor of the constitutionality of Section 109’s 
grant of agency authority. See American Power & 
Light Co., 329 U.S. at 105 (“[p]rivate rights are pro- 
tected by access to the courts to test the application of 
the policy in the light of the[] legislative declarations”); 
Touby, 500 U.S. at 170 (Marshall, J., concurring); see 
also Schechter Poultry, 295 U.S. at 532-533 (distinguish- 
ing cases upholding broad legislative authorizations be- 
cause, e.g., statutes provided notice and hearing proce- 
dures). 

Fog episode. Pet. App. 11a. For example, EPA found, based on 
new evidence in the 1997 rulemaking, that the 1987 NAAQS for 
particulate matter were inadequate to protect public health. That 
finding effectively dictated that the upper bound for the Adminis- 
trator’s consideration for revised standards had to be at least as 
protective as the 1987 NAAQS, which were set far below “Killer 
Fog” levels. See, e.g., 62 Fed. Reg. at 38,656-38,666, 38,674-38,675. 
EPA made a similar finding regarding the inadequacy of the exist- 
ing ozone NAAQS. 61 Fed. Reg. 65,716, 65,719-65,721 (1996). In 
each instance, EPA established the lower limit based on an exten- 
sive examination of the best available scientific evidence of ad- 
verse health effects, see 62 Fed. Reg. at 38,674-38,677; 61 Fed. 
Reg. at 65,727-65,728, and the range of alternatives considered was 
far narrower than the range suggested by the court. See also Pet. 
App. 66a (Tatel, J., dissenting). 

15 

The CAA’s legislative history, which the majority 
also failed to consider, provides further guidance to the 
agency. That history indicates that the health effects 
justifying a NAAQS must be “adverse,” Lead Indus. 
Ass’n, 647 F.2d at 1152 (citing S. Rep. No. 1196, 91st 
Cong., 2d Sess. 10 (1970)), and therefore must be medi- 
cally significant and not merely detectable. To provide 
an “adequate margin of safety,” standards must be 
“preventative or precautionary,” reflecting an emphasis 
on the “predominant value of protection of public 
health.” Ibid. (quoting H.R. Rep. No. 294, 95th Cong., 
1st Sess. 49 (1977)); id. at 1155 (EPA must “err on the 
side of caution”). EPA cannot consider the economic or 
technological feasibility of attaining NAAQS. Id. at 
1148-1151. Finally, public health is distinct from indi- 
vidual health; NAAQS must protect “sensitive” popula- 
tions, such as asthmatics, id. at 1152, but not the most 
sensitive individuals within those populations. See S. 
Rep. No. 1196, supra, at 10 (EPA must consider effects 
by reference to “a representative sample of persons 
comprising the sensitive group rather than to a single 
person in such a group.”), reprinted in 1 Staff of the 
Senate Comm. on Pub. Works, 93d Cong., 2d Sess., A 
Legislative History of the Clean Air Act Amendments 
of 1970, at 410 (Comm. Print 1974).9 

9 Drawing on the legislative guidance, EPA has developed “de- 
cisional criteria” that it considers in the course of developing 
NAAQS. The public health factors considered include the nature 
and severity of health effects, the types of health evidence, the 
kind and degree of uncertainties involved, and the size and nature 
of the sensitive populations at risk. The District of Columbia Cir- 
cuit first approved EPA’s use of those factors almost 20 years ago, 
Lead Indus., 647 F.2d at 1161; EPA has since employed them in 
numerous NAAQS rulemakings; and even the panel majority 
found them reasonable. Pet. App. 5a-7a. 

16 

This Court’s decisions on the nondelegation doctrine 
reflect “a practical understanding that in our increas- 
ingly complex society, replete with ever changing and 
more technical problems, Congress simply cannot do its 
job absent an ability to delegate power under broad 
general directives.” Mistretta, 488 U.S. at 372. The 
court of appeals lost sight of that crucial practical 
understanding and, in doing so, opened to potential 
constitutional attack not only Section 109 of the CAA, 
but also numerous other federal statutes containing 
similarly broad grants of authority to administrative 
agencies. 

b. The court of appeals’ decision departs from estab- 
lished law by transforming the nondelegation doctrine 
from a means for preserving the separation of powers 
by ensuring that Congress has not abdicated, by 
delegating to another Branch or to private parties, its 
power to “make * * * Laws,” U.S. Const. Art. I, § 8, 
Cl. 18, into a basis for otherwise unwarranted judicial 
supervision of the exercise of administrative discretion. 
See Pet. App. 14a. The court directed EPA to “de- 
velop[] determinate, binding standards for itself ” to 
reduce the likelihood that EPA would “exercise the 
delegated authority arbitrarily” and to “enhance the 
likelihood that meaningful judicial review will prove 
feasible.” Ibid. Neither Chevron U.S.A. Inc. v. Natu- 
ral Resources Defense Council, Inc., 467 U.S. 837 
(1984), nor any other decision of this Court, justifies 
that novel utilization of the nondelegation doctrine. See 
Pet. App. 92a (Silberman, J., dissenting from the denial 
of rehearing en banc) (“I do not think that [the non- 
delegation] doctrine can be employed to force an agency 
to narrow a broad legislative delegation from Con- 
gress.”). 

As a practical matter, the court of appeals’ decision 
would initiate a fundamental change in the nature of 

17 

judicial review of agency standard-setting. The court 
concluded that the nondelegation doctrine requires 
Congress, or agencies interpreting the intent of Con- 
gress, to delineate a “determinate criterion for drawing 
lines” or, by implication, a quantitative rule for deciding 
the precise degree of protection required for a given 
health or safety standard. See Pet. App. 6a. In effect, 
the panel demanded that either the CAA or EPA 
supply a principle that would allow a reviewing court to 
conclude that EPA reached what is, in the court’s view, 
exactly the “right” result. That approach would effec- 
tively supplant the concept that courts review agency 
determinations based on an arbitrary and capricious 
standard. As Judge Silberman recognized, it would 
“implicitly assert[] a greater role for a reviewing court 
than is justified.” Id. at 96a. See also note 4 , supra. 

The court’s direction to EPA to develop “determi- 
nate, binding standards” to govern the agency’s 
NAAQS decisions (Pet. App. 14a) is inconsistent with 
this Court’s instruction in American Power & Light 
Co., 329 U.S. at 106: 

Nor is there any constitutional requirement that the 
legislative standards be translated by [an agency] 
into formal and detailed rules of thumb prior to their 
application to a particular case. If that agency 
wishes to proceed by the more flexible case-by-case 
method, the Constitution offers no obstacle. 

Cf. Vermont Yankee Nuclear Power Co. v. Natural 
Resources Defense Council, Inc., 435 U.S. 519, 543-545 
(1978). The court’s rationale for its approach—to make 
arbitrary agency action less likely and to enhance 
meaningful judicial review (Pet. App. 14a)—is ade- 
quately addressed through the arbitrary and capricious 
standard for judicial review of agency action, including 
review to determine whether the agency has ade- 

18 

quately explained any departures from past practices 
or decisions. See id. at 68a (Tatel, J., dissenting) (those 
issues “relate to whether the NAAQS are arbitrary and 
capricious” and “ha[ve] nothing to do with our inquiry 
under the nondelegation doctrine”). 

10 

Neither the Constitution, the CAA, nor any prior ju- 
dicial decision requires EPA to supply the “determinate 
criterion for drawing lines,” Pet. App. 6a, that would 
produce the precision the majority demanded here. See 
also id. at 10a (standard prescribing “how much uncer- 
tainty is too much”). Instead, EPA must consider the 
factors that the CAA prescribes and provide a reasoned 
explanation, based on scientific evidence, for its deci- 
sion. As this Court explained in reviewing rates set by 
the Federal Power Commission under a statute requir- 
ing rates to be “just and reasonable”: 

[T]here is no single cost-recovering rate, but a zone 
of reasonableness: “Statutory reasonableness is an 
abstract quality represented by an area rather than 
a pinpoint. It allows a substantial spread between 
what is unreasonable because too low and what is 
unreasonable because too high.” 

FPC v. Conway Corp., 426 U.S. 271, 278 (1976) (quoting 
Montana-Dakota Util. Co. v. Northwestern Pub. Serv. 

10 The court’s extraordinary, policy-based suggestion that EPA 
could employ a quantitative “generic unit of harm” based on 
Oregon’s approach to Medicaid (Pet. App. 16a-17a & n.5) would not 
solve the constitutional problem the court perceived; EPA would 
still have to draw lines. Even if we assume that such a quantita- 
tive approach were possible, the policy judgments necessary to 
establish a “generic unit of harm” and to determine how many such 
units are permissible under the CAA would be similar to those 
EPA has traditionally made in its NAAQS proceedings; these 
judgments would merely be made under a different framework 
that would likely be more confusing and difficult for the public and 
a reviewing court to evaluate. 

19 

Co., 341 U.S. 246, 251 (1951)). That is also the approach 
the District of Columbia Circuit has followed in re- 
viewing prior decisions under Section 109, such as the 
1987 particulate matter standard. See Natural Re- 
sources Defense Council, Inc. v. EPA, 902 F.2d 962, 972 
(D.C. Cir. 1990) (CAA does not require EPA to identify 
“the clear and sole appropriate standard,” but rather a 
standard that is reasonable in light of the record evi- 
dence). 

The court of appeals’ decision marks a profound 
change in the ground rules that shape not only EPA’s 
air quality and other programs, but also those of other 
federal agencies. Many, if not most, of the rules and 
decisions under those programs are reviewed in the 
District of Columbia Circuit. This Court should review 
the court of appeals’ decision and determine, before 
EPA and other agencies refocus the analyses that they 
have traditionally employed under the arbitrary and 
capricious standard, whether those new ground rules 
are appropriate. 

11 

2. The court of appeals also significantly erred in 
assuming jurisdiction to decide the scope of EPA’s 

11 The court of appeals’ decision cannot give rise to a square 
conflict among the courts of appeals, because Section 307(b) of the 
CAA vests the District of Columbia Circuit with exclusive juris- 
diction to review EPA’s decisions to promulgate and revise the 
NAAQS. See 42 U.S.C. 7607(b). Nevertheless, as Judge Tatel 
noted, the majority’s decision is inconsistent with the reasoning of 
a First Circuit decision that addressed a nondelegation challenge 
in the course of reviewing a CAA implementation issue (a trans- 
portation plan aimed at achieving a NAAQS). See Pet. App. 60a- 
61a. See also pp. 19-20, infra (describing the CAA provisions that 
direct implementation challenges to the regional courts of appeals). 
The First Circuit stated, in that context, that Section 109’s “requi- 
site to protect the public health” standard is not an unconstitu- 
tional and excessive delegation of legislative authority. South 
Terminal Corp. v. EPA, 504 F.2d 646, 677 (1974). 

20 

authority to implement and enforce the revised ozone 
NAAQS. Pet. App. 37a-44a. Section 307(b)(1) of the 
CAA authorizes the District of Columbia Circuit to 
review “action of the Administrator in promulgating 
any [NAAQS]” and other “nationally applicable regula- 
tions promulgated, or final action taken, by the Ad- 
ministrator.” 42 U.S.C. 7607(b)(1). Section 307(b)(1) 
further states, however, that the regional courts of ap- 
peals shall have authority to review “the Administra- 
tor’s action in approving or promulgating any imple- 
mentation plan under [Section 110 of the Act].” 42 
U.S.C. 7607(b)(1). The CAA makes clear, by expressly 
deferring challenges to EPA’s classification decisions 
until EPA takes final action on a State’s submission (or 
failure to submit) a SIP, that the question of how to 
classify areas for purposes of setting attainment dates 
for the revised ozone NAAQS is reviewable only as 
part of the post-NAAQS-promulgation process of im- 
plementation planning. See CAA §§ 172(a)(1)(B), 
181(a)(3), 42 U.S.C. 7502(a)(1)(B), 7511(a)(3). 

Consistent with the procedural steps set out in the 
CAA, EPA did not take final action in the 1997 ozone 
rulemaking to implement or enforce the revised ozone 
NAAQS. EPA has not, for example, designated areas 
as attainment or nonattainment for the eight-hour stan- 
dard under Section 107(d), and it has neither classified 
any nonattainment areas nor established attainment 
dates under either Section 172(a) or Section 181(a)(1). 
See 42 U.S.C. 7502(a), 7511(a)(1). The issue of 
implementation arose solely because ATA argued that 
Congress, by establishing a scheme in Section 181(a)(1) 
for implementing the then-current one-hour ozone 
standard, implicitly prohibited EPA from ever 
promulgating any revised ozone NAAQS. EPA re- 
sponded to that argument in the rulemaking preamble 
(and later in its court of appeals brief) by explaining, in 

21 

the course of showing why the Section 181(a) scheme 
does not prevent EPA from promulgating a revised 
NAAQS, how it would implement such a standard. See 
62 Fed. Reg. at 38,884-38,885. The only issue before the 
court of appeals, therefore, was whether the statutory 
provisions at issue precluded EPA from promulgating 
the revised standard. Once the court answered this 
question in the negative, Pet. App. 34a-37a, its task was 
done. It should not have gone on to consider prema- 
turely whether and how EPA could implement the 
revised NAAQS. 

The court of appeals’ decision to address prematurely 
the question of NAAQS implementation has important 
consequences that warrant this Court’s review. The 
court of appeals has departed from the requirement 
that the reviewing court restrict its inquiry to the 
agency’s final actions, and it has adopted a test for 
finality that is inconsistent with the test applied by this 
Court and other courts of appeals. The court has also 
violated similarly well-established ripeness principles 
and deprived the agency charged with implementing a 
complex statute of the opportunity fully to develop its 
interpretation and resolve any tensions within the 
statutory scheme. 

a. The panel erroneously concluded that the views 
that EPA had expressed in the rulemaking preamble 
regarding its implementation authority constitute final 
action. Pet. App. 77a-78a. In Bennett v. Spear, 520 
U.S. 154 (1997), this Court explained that 

two conditions must be satisfied for agency action to 
be “final”: First, the action must mark the “consum- 
mation” of the agency’s decisionmaking process 

* * *—it must not be of a merely tentative or 
interlocutory nature. And second, the action must 
be one by which “rights or obligations have been 

22 

determined,” or from which “legal consequences will 
flow” * * *. 

Id. at 177-178 (citations omitted). In this case, the court 
of appeals determined, notwithstanding Bennett, that 
preamble statements that merely express EPA’s future 
intentions are final agency actions. The court effec- 
tively reconfigured each prong of this Court’s test in a 
way that would significantly broaden the domain of 
final agency actions. 

The court of appeals ruled that EPA’s statements 
respecting NAAQS implementation satisfied the “con- 
summation” prong because the court concluded that 
EPA’s description of how it would implement the rule 
would likely not change. See Pet. App. 77a-78a. Under 
Bennett, however, the proper inquiry is not merely 
whether the agency has any present intention to alter 
its position. Rather, the question is whether the agency 
has completed its decisionmaking process under the 
governing statute for the specific agency action at 
issue. Here, EPA has not designated nonattainment 
areas, classified those areas, or set attainment dates in 
accordance with the CAA’s statutorily prescribed deci- 
sionmaking process. See, e.g., CAA §§ 107(d), 172(a), 42 
U.S.C. 7407(d), 7502(a). The court of appeals’ approach 
of focusing on the certainty of EPA’s preamble state- 
ments, without considering whether the statements 
consummate the statutory decisionmaking process for 
implementing the ozone NAAQS, distorts the Bennett 
test and conflicts with the finality jurisprudence of 
other courts of appeals. 

12 

12 For example, in Dow Chemical Co. v. EPA, 832 F.2d 319 (5th 
Cir. 1987), the court explained that “EPA’s construction of [the 
regulatory provision] is ‘final’ only in the sense that no one at the 
agency currently plans to revise it. The same could be said of 
countless other instances of legal ‘interpretation.’ ” Id. at 323-324. 

23 

The court of appeals’ decision also distorts the second 
Bennett factor. The court concluded that EPA’s pre- 
amble statements respecting the agency’s future imple- 
mentation plans constitute final agency action even 
though no legal consequences flow from EPA’s expres- 
sion of its views regarding the statutory provisions that 
govern implementation of a revised ozone NAAQS. See 
Pet. App. 78a. ATA will not be affected by EPA’s 
views on implementation of the revised ozone NAAQS 
until the agency takes actual steps to implement the 
NAAQS by designating and classifying nonattainment 
areas and setting attainment dates. ATA will be able to 
obtain judicial review of EPA’s judgments on those 
issues—through the statutorily prescribed mechanism 
(see pp. 19-20, supra)—once EPA takes such final 
binding action on those specific matters. The court of 
appeals erred in overlooking these decisive considera- 
tions and treating the legal effects of NAAQS 

Instead, to satisfy the definitiveness requirement, the relevant ad- 
ministrative decisional process must be complete. American 
Airlines, Inc. v. Herman, 176 F.3d 283, 291-292 (5th Cir. 1999). 
Other courts of appeals have taken varying approaches to whether 
certainty alone, or an evaluation within the broader statutory con- 
text, is necessary to determine whether the first factor under 
Bennett has been satisfied. Compare, e.g., Hindes v. FDIC, 137 
F.3d 148, 162 (3d Cir. 1998) (because notification issued by FDIC 
was the first step of a multi-step process, it did not constitute 
FDIC’s definitive statement and thus was not final), and Mobil 
Exploration & Producing U.S., Inc. v. Department of the Interior, 
180 F.3d 1192, 1198-1199 (10th Cir. 1999) (although agency letter 
may have concluded that an audit should begin under the statute, 
that did not consummate the decisionmaking process within the 
overall statutory scheme that would satisfy the first prong for 
finality), with Western Ill. Home Health Care, Inc. v. Herman, 150 
F.3d 659, 663 (7th Cir. 1998) (agency letter characterizing situation 
as a joint employee relationship, establishing the agency’s 
“enforcement position,” satisfies the first prong of finality because 
it is “not at all tentative”). 

24 

promulgation as if they were a consequence of EPA’s 
preamble statements respecting implementation. 

13 

b. Even if it is assumed that EPA’s preamble state- 
ments respecting implementation constitute final 
agency action, that action would not be ripe for judicial 
review. The court of appeals’ concern over how to 
reconcile Sections 172 and 181 is not yet fit for review 
because the matter is too abstract and general: EPA 
has neither fully developed its interpretation nor 
attempted to exercise its implementation authority. 
See, e.g., Ohio Forestry Ass’n v. Sierra Club, 523 U.S. 
726, 732-738 (1998); Abbott Labs. v. Gardner, 387 U.S. 
136, 148-149 (1967). 

14 

The interplay among Section 107(d), Section 172, Sec- 
tion 181, and other relevant provisions of the CAA is 
complex. Judicial exploration of these issues would be 
on much surer footing if the reviewing court had the 
benefit of EPA’s full thinking and explanation of how 
and why it has implemented a NAAQS in a particular 
way, in a particular context, after the completion of the 
relevant decisional process (including public notice and 
comment) that actually implements the standard. Fur- 

13 The court suggested that EPA’s statements were final action 
because by “promulgating a revised ozone NAAQS the EPA has 
triggered the provisions of §§ 107(d)(1) and 172, which impose a 
number of requirements upon the states * * * [and] those areas 
that do not comply will ultimately be required to do so.” Pet. App. 
78a. But the triggered events are solely a consequence of promul- 
gation of the revised NAAQS and have nothing to do with EPA’s 
preamble statements respecting implementation. 

14 Indeed, it is doubtful whether the dispute over implementa- 
tion is sufficiently concrete to constitute a case or controversy 
within the meaning of Article III. See Reno v. Catholic Social 
Servs., Inc., 509 U.S. 43, 57 n.18 (1993) (the ripeness doctrine “is 
drawn both from Article III limitations on judicial power and from 
prudential reasons for refusing to exercise jurisdiction”). 

25 

thermore, deferring review would allow EPA the op- 
portunity to work through the various implementation 
provisions, reconcile any conflicts, and make any policy 
judgments and apply its expertise as necessary to re- 
solve ambiguities in the statute. See Ohio Forestry 
Ass’n, 523 U.S. at 733-734; Chevron, 467 U.S. at 842- 
845. The importance of such a concrete setting for judi- 
cial review is underscored by the court’s own confusion 
regarding EPA’s interpretation, compare Pet. App. 
43a, 44a, with id. at 80a-81a, and the extreme breadth 
and generality of the court’s conclusion that “EPA can 
enforce a revised primary ozone NAAQS only in con- 
formity with [Section 181].” Id. at 81a. 

15 

3. In our view, the jurisdictional preconditions of 
final agency action and ripeness should have prevented 
the court of appeals from reaching the merits of any 
NAAQS implementation dispute. But even if the court 
of appeals could have overcome those obstacles, its 
decision on the merits is wrong. Congress “has not di- 
rectly addressed the precise question” of the relation- 
ship between Section 172 and Section 181 (see Chevron, 
467 U.S. at 843); instead, it has left a gap for the agency 
to fill (id. at 843-844); and the question is whether 
EPA’s conclusion that Section 172 and Section 181 can 
be applied simultaneously “represents a reasonable 
accommodation of conflicting policies that were com- 
mitted to the agency’s care by the statute” (id. at 845). 
We first describe the origins of the relevant provisions, 
including the terminology of “Subpart 1” and “Subpart 

15 The court, on rehearing, erroneously concluded that this issue 
“would not benefit from a more concrete setting,” apparently be- 
cause the issue is legal in nature. See Pet. App. 80a. The presence 
of a legal issue does not, by itself, render review appropriate be- 
fore the issue arises in a concrete case or controversy. See, e.g., 
U.S. Bancorp Mortgage Co. v. Bonner Mall Partnership, 513 U.S. 
18, 21 (1994). 

26 

2.” We then explain the difference between EPA’s and 
the court’s understanding of those provisions. Finally, 
we briefly summarize why, if the issue must be decided 
at this juncture, the court of appeals’ understanding is 
flawed. 

a. When Congress first enacted the CAA in 1970, 
and authorized EPA to promulgate and revise NAAQS, 
it expected that the various regions of the country 
would meet the NAAQS in a relatively short period of 
time. Attainment proved more difficult than expected, 
and when Congress enacted the 1990 CAA Amend- 
ments, it specifically addressed certain aspects of the 
nonattainment problem. First, Congress preserved 
(with some modifications) EPA’s general authority to 
revise NAAQS at five-year intervals and to designate 
nonattainment areas. See CAA §§ 107(d), 109(d), 42 
U.S.C. 7407(d), 7409(d). Next, Congress enacted a new 
Subpart 1, Part D, Title I of the CAA, which granted 
EPA additional authority, set out in Section 172(a), to 
classify nonattainment areas and to set attainment 
dates under all new or revised NAAQS. 42 U.S.C. 
7502(a). Section 172(a) makes clear that this authority 
applies unless “classifications [or attainment dates] are 
specifically provided under other provisions” of the Act. 
42 U.S.C. 7502(a)(1)(C) and (2)(D). In addition, Con- 
gress enacted a series of other new Subparts, encom- 
passing Sections 181 to 191 of the CAA, to address 
the problems raised by nonattainment of particular 
NAAQS. Subpart 2 addresses the ozone NAAQS. Sec- 
tion 181(a)(1) therein sets out a schedule establishing 
“classification and attainment dates for 1989 nonattain- 
ment areas.” 42 U.S.C. 7511(a). That schedule estab- 
lishes those classifications and attainment dates based 
on the one-hour ozone standard then in effect and sets 
attainment dates that run from the enactment of the 
1990 Amendments. 

27 

b. In response to public comments, EPA described 
the relationship between Section 107, Subpart 1, and 
Subpart 2. It stated in the ozone rulemaking that, once 
EPA completes promulgation of a revised ozone 
NAAQS, those provisions collectively require that 
EPA: (1) designate nonattainment areas in accordance 
with Section 107(d), and establish classifications and 
attainment dates and take other implementing actions 
for the revised ozone NAAQS under Subpart 1; and (2) 
simultaneously continue to implement the provisions of 
Subpart 2 for areas that have not yet attained under 
the prior one-hour ozone standard. See 62 Fed. Reg. at 
38,884-38,885. The court of appeals properly rejected 
ATA’s argument that EPA lacked any authority to 
revise the ozone NAAQS in light of the Subpart 2 
classifications and attainment dates. Pet. App. 34a-37a. 
But the court went on to conclude (prematurely, in our 
view, see pp. 21-25, supra) that Subpart 2 precluded 
implementation of a more protective ozone NAAQS. 
See id. at 37a-44a. When EPA explained on rehearing 
that the court’s construction would lead to irrational 
results, the court revised its decision to state that 
“EPA can enforce a revised primary ozone NAAQS 
only in conformity with Subpart 2,” id. at 82a, which 
apparently means that EPA can enforce its revised 
ozone NAAQS under Subpart 1 once an area attains the 
one-hour standard under Subpart 2, id. at 89a (Tatel, J., 
concurring). See p. 8, supra. 

c. The court of appeals’ reasoning, even as modified 
on rehearing and interpreted by Judge Tatel, is flawed. 
Contrary to the court’s suggestions, Pet. App. 37a, the 
CAA does not precisely address how to reconcile Sub- 
part 1—which authorizes EPA to set new classifications 
and attainment dates for revised NAAQS—with Sub- 
part 2—which establishes a specific timetable for com- 
pliance with the one-hour ozone standard in effect in 

28 

1989. The CAA surely does not dictate the result the 
court of appeals has required. 

16 

Under Chevron, “if the statute is silent or ambiguous 
with respect to the specific issue, the question for the 

16 The court believed that the CAA specifies how those provi- 
sions should be reconciled because Subpart 1 provisions do not 
apply if “classifications [or attainment dates] are specifically pro- 
vided under other provisions” of the CAA, see CAA § 172(a)(1)(C) 
and (2)(D), 42 U.S.C. 7502(a)(1)(C) and (2)(D). Pet. App. 37a. In 
the court’s view, Subpart 2 provides classifications and attainment 
dates for any ozone standard, including any revised ozone 
NAAQS. That view, which is based on a highly technical argu- 
ment, is wrong. The court reasoned that, because Section 181(a) of 
Subpart 2 states that an “area designated non-attainment for 
ozone pursuant to [Section 107(d)] * * * shall be classified at the 
time of such designation” in accordance with the table in Section 
181(a); and because Section 107(d) addresses designations under 
both the one-hour ozone standard in effect in 1989 and future 
NAAQS revisions; then Subpart 2 must govern the implementa- 
tion of any ozone NAAQS. See id. at 38a-41a. That reasoning is 
flawed because Section 181(a)’s reference to Section 107(d) is 
cabined by the context of Subpart 2. It is clear from the statutory 
context that Section 181(a) refers only to Section 107(d) designa- 
tions of nonattainment areas under the one-hour ozone standard 
that was in effect in 1989. For example: (1) Section 181(a)’s cap- 
tion denotes that the Section addresses “Classification and attain- 
ment dates for 1989 nonattainment areas” (emphasis added); (2) 
Section 181(a) bases attainment dates and classification on an 
area’s “design value,” specifically codifying the methodology of the 
one-hour ozone standard then in existence; (3) Section 181(a) pro- 
vides classification and attainment dates only for nonattainment 
areas with ozone levels in excess of .012 ppm – the “design value” 
in effect in 1989-1990 under the one-hour standard; and (4) Section 
181(a) bases attainment dates by reference to 1990 and imposes 
attainment deadlines that, for most areas, have already passed. 
See 42 U.S.C. 7511(a)(1). Hence, the text and context of Section 
181(a) indicate that Congress intended to provide classifications 
and attainment dates only for nonattainment areas designated 
under Section 107(d) for the then-current one-hour ozone standard. 
See 42 U.S.C. 7407(d)(1)(C) and (4)(A). 

29 

court is whether the agency’s answer is based on a 
permissible construction of the statute.” 467 U.S. at 
843. EPA has reasonably concluded that Congress in- 
tended that EPA would implement a revised ozone 
NAAQS under Subpart 1 for all members of the Ameri- 
can public, including those members that reside in 
nonattainment areas governed by Subpart 2, “as expe- 
ditiously as practicable.” See CAA § 172(a)(2), 42 
U.S.C. 7502(a)(2); CAA § 181(a)(1), 42 U.S.C. 7511(a)(1). 
There is no warrant for imposing a categorical 
requirement that EPA must ensure compliance with 
the inadequately protective one-hour ozone standard 
before it can require efforts to attain the more protec- 
tive revised ozone NAAQS. 

17 To the extent that there 
is a conflict between Subpart 1 and Subpart 2, it is up to 
EPA to harmonize the applicable provisions, and the 
courts must defer to EPA’s reasonable judgment on the 
matter. Chevron, 467 U.S. at 845. 

18 

17 For example, it may be “practicable”—and preferable from an 
implementing State’s perspective—to achieve both the one-hour 
ozone standard and the revised ozone NAAQS at the same time. 
There is no reason to believe that Congress intended to preclude 
that approach. 

18 The court of appeals expressed concern that a practical con- 
flict could conceivably arise for the Los Angeles nonattainment 
area between Subpart 1’s attainment date for the revised ozone 
NAAQS and Subpart 2’s attainment date for the one-hour ozone 
standard. In the court’s view, Congress would not have intended 
that Los Angeles comply with the revised ozone NAAQS before 
Subpart 2’s statutory deadline for compliance with the one-hour 
standard. See Pet. App. 41a. That concern, however, is over- 
stated. The time deadlines set out in Section 181(a)(1) establish 
the outer time limits for attaining the one-hour standard, see 42 
U.S.C. 7511(a)(1). Los Angeles would be required to attain the re- 
vised NAAQS under Subpart 1 no later than the same year that 
marks the outer time limit for attaining Subpart 2’s one-hour ozone 
standard. Compare CAA § 172(a)(2), 42 U.S.C. 7502(a)(2), with 

30 

In our view, EPA’s preliminary statements respect- 
ing implementation do not constitute final agency action 
and are not ripe for judicial review. But if the Court 
concludes otherwise, then it should proceed to address 
the merits of this important issue. On the merits, the 
court of appeals erred in ruling that the CAA categori- 
cally precludes the EPA from implementing the revised 
ozone NAAQS under Subpart 1 until the nonattainment 
areas described in Subpart 2 have attained Subpart 2’s 
one-hour ozone standard. 

CONCLUSION 

The petition for a writ of certiorari should be 
granted. 

Respectfully submitted. 

GARY S. GUZY 

General Counsel 

ROBERT G. DREHER 

Deputy General Counsel 

GERALD K. GLEASON 
MICHAEL L. GOO 
AMEY W. MARRELLA 
JAN M. TIERNEY 
KEVIN W. MCLEAN 

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 

DAVID J. KAPLAN 
MARY F. EDGAR 

Attorneys 

JANUARY 2000 

CAA § 181(a)(1) and (5), 42 U.S.C. 7511(a)(1) and (5). In any event, 
the question of how EPA should reconcile any competing compli- 
ance deadlines is clearly the type of issue that should first be 
addressed by EPA through the implementation process, including 
public notice and comment, and subject to judicial review in the 
appropriate regional court of appeals. See CAA § 307(b), 42 U.S.C. 
7607(b).