Virtual Guest Speakers 

February 21:

Gary Marchant - Associate Professor, Arizona State University College of Law
Topic: The American Trucking Assoications Decision: Overturning the National Ambient Air Quality Standards for Ozone and Particulate Matter
Transcript of Lecture
Other links
Discussion List   (Professor Marchant will participate from February 21 - February 25).

Short Biography of Professor Gary Marchant

Biography: Associate Professor Gary Marchant joined the faculty of Arizona State University College of Law in the fall of 1999.  Prior to that he was a partner in the Washington, D.C. office of the law firm of Kirkland & Ellis, where he practiced in the areas of environmental, administrative and products liability law for ten years.  He represented the lead petitioner American Trucking Associations and other small business petitioners in the ATA v. EPA case before the D.C. Circuit.  He received his J.D. magna cum laude in 1990 from Harvard Law School, where he was Editor-in-Chief of the Harvard Journal of Law & Technology and editor of the Harvard Environmental Law Review.  He also received a Ph.D. in Zoology from the University of British Columbia in 1986, and a Masters of Public Policy from the Kennedy School of Government at Harvard University in1990.  Professor Marchant teaches and researches in the subject areas of environmental law, genetics and the law, and law, science and technology. 

Transcript of lecture
The American Trucking Associations Decision: Over-Turning
the National Ambient Air Quality Standards for Ozone and Particulate Matter
Presentation by Gary Marchant
Associate Professor, Arizona State University College of Law
for the
Environmental Law Virtual Guest Speakers Program

I appreciate this opportunity to participate in the Virtual Guest Speakers Program, and wish to thank Professor Stephen Johnson both for inviting my presentation, and for organizing this very valuable program that I think presents a terrific array of different perspectives on environmental law for both environmental law faculty and students.

My presentation focuses on a May 14, 1999 decision of the U.S. Court of Appeals for the D.C. Circuit, in a case called American Trucking Associations v. U.S. Environmental Protection Agency (175 F.3d 1027 (D.C. Cir. 1999)). This decision held unlawful EPA's national ambient air quality standards ("NAAQS") for ozone and particulate matter ("PM"). The decision sparked a wave of newspaper editorials, press releases, new stories, and scholarly commentaries and analyses. Some of those responses viewed the decision very favorably, while many others were opposed. Regardless of what position they sided with, however, almost every one of the commentators described the decision as "stunning," "remarkable," "surprising,""extraordinary," "a blockbuster," or words to that effect. EPA Administrator Carol Browner called the decision "extreme, illogical, and bizarre."

There are several reasons why this decision is important and has attracted so much attention. First, the EPA NAAQS standards that were found unlawful are the core of the Clean Air Act, which itself is probably the most important environmental statute in the country. Much of the Clean Air Act is centered on achieving compliance with the NAAQS.

Second, the two specific NAAQS at issue here -- the ozone and PM NAAQS, commonly described as "smog" and "soot" respectively - are the most important of the NAAQS, both in terms of their potential public health significance, and with respect to the difficulty and cost of achieving them. More areas are currently out-of-compliance with the existing ozone and PM NAAQS than any other NAAQS. If the revised ozone and PM NAAQS had been upheld, substantially more areas of the country would then be out of compliance, and would have had to institute expensive new control programs.

Third, the decision is significant because it invalidates what may well have been the most expensive federal regulations ever adopted by a U.S. regulatory agency. EPA estimated the cost of full compliance with the combined ozone and PM NAAQS to be over $40 billion per year, with other estimates from other federal agencies and industry much higher. To put these costs in comparison, even using EPA's numbers, the annual cost of compliance with the two NAAQS exceeds the total annual costs of all other Clean Air Act programs combined.

Fourth, the case also raises several broader legal issues that may extend beyond this litigation. For example, the court's decision establishes a new approach to the constitutional non-delegation doctrine that could apply in other regulatory contexts. The case also addresses the somewhat counter-intuitive proposition that some ozone pollution may be beneficial to human health, and involves the too frequent problem of regulatory agencies failing to consider the risk-risk trade-offs of their actions.

Finally, this case is important to study because it will likely result in an important Supreme Court decision. In late January 2000, EPA filed a petition for certiorari with the U.S. Supreme Court seeking to challenge the D.C. Circuit's decision invalidating EPA's ozone and PM standards. Assuming the Supreme Court agrees to hear the case, the resulting decision could well be one of the most significant Supreme Court decisions on environmental issues ever.

Now that I have hopefully enticed you to read further about this case, let me first make a couple personal disclosures before addressing the merits. First, I approach this case primarily from the perspective of an advocate rather than as a neutral, disinterested observer. Along with my former partners Ed Warren and Rob Gasaway at Kirkland & Ellis, I represented the lead petitioner American Trucking Associations and other small business petitioners in this litigation. And, if you have ever worked on a litigation matter before, you will know that once you have established a relationship with your client and have engaged in the heated pitch of litigation on their behalf, your personal perspective will often come to align closely with that of your client. So, let me unabashedly disclose right up front that I believe that EPA's decision to adopt its revised ozone and PM standards was legally suspect and not justified by the evidentiary record, and that the D.C. Circuit's decision overturning those standards was appropriate and correctly decided. Notwithstanding this disclosure, though, I also need to state for the record that with my recent move to academia here at Arizona State, I am no longer representing my former clients, and therefore I am not speaking on their behalf and my views should not be attributed to either my former clients or former law firm.

With those formalities out of the way, let me first provide some brief background on national ambient air quality standards or "NAAQS," then quickly describe the EPA rulemaking to revise the ozone and PM NAAQS, and finally to focus primarily on the D.C. Circuit's decision overturning those standards.

Brief Background on National Ambient Air Quality Standards

NAAQS are the most important standards under the Clean Air Act, and often are called the "core" of the Act, given that much of the rest of the statute is directed at implementing the NAAQS. As their name implies, the NAAQS set maximum allowable "ambient" concentrations of certain pollutants, called "criteria" pollutants. The criteria pollutants are generally produced by a wide variety of sources and are dispersed over large regions, unlike many hazardous air pollutants, for example, which are primarily concentrated around the individual sources from which they are emitted. The term "criteria" refers to the fact that EPA develops a "criteria" document for these pollutants under section 108 of the Clean Air Act, which provides a comprehensive scientific review of the health and other aspects of that pollutant.

Once a criteria document has been prepared, EPA must then promulgate NAAQS for that pollutant under section 109 of the Act. EPA must issue a "primary" NAAQS for the purpose of protecting human health that the statute requires to be set at a level that "in the judgment of the Administrator" is "requisite to protect the public health" with an adequate margin of safety. The statute provides no other real guidance to EPA on how to set NAAQS standards. EPA is also directed to issue a secondary NAAQS to protect human welfare, which as its name implies, is typically secondary to the primary NAAQS with respect to its importance and the attention it receives. The six criteria pollutants for which EPA has issued NAAQS include ozone, PM, carbon monoxide, sulfur dioxide, nitrogen oxide, and lead.

Round 1: EPA's Ozone and PM Rulemaking

Of the existing criteria pollutants, ozone and PM are the most important, both with respect to their overall health significance and the difficulty and cost of compliance. It was therefore of great interest when EPA announced that it planned to consider simultaneous revisions to its existing ozone and PM standards. Under section 109(d), EPA must review each of its NAAQS every five years. EPA had last reviewed its ozone NAAQS in 1993, at which time the Agency committed to promptly begin preparing a new ozone criteria document and, if warranted, to proceed with a revision to the ozone NAAQS in the next review cycle.

EPA had not reviewed its PM NAAQS since the late 1980s, and the Sierra Club brought a lawsuit in federal district court in Arizona under Clean Air Act § 304 to force EPA to comply with its non-discretionary duty to review and, if appropriate, revise the PM NAAQS. That citizens suit led to a court order from the district court that required EPA to issue a proposed decision on the PM standard by the end of November 1996, and to issue a final decision by July 1997. Those deadlines established an extraordinarily tight schedule to revise the PM standard if EPA indeed decided to revise the standard, as past NAAQS revisions usually required significantly greater time both before issuance of a proposed rule and between the proposed and final rules. In the limited time allowed by the district court order, EPA had to complete the statutorily- required review of its actions by the Clean Air Science Advisory Committee ("CASAC"), to solicit and consider public comments, and to review the extensive data and prepare the substantial documentation that typically accompanies a NAAQS standard.

Early in the review process for both the ozone and PM NAAQS, it became clear that EPA was contemplating major changes to the form, not just the stringency, of both standards in response to recent scientific findings. The existing primary ozone standard was set at 0.12 parts per million ("ppm") averaged over a one-hour period. In response to studies indicating that the primary detrimental health impacts of ozone occur over longer exposure periods, EPA was considering changing the ozone standard to an eight-hour rather than a one-hour average. An eight-hour ozone standard set at 0.09 ppm would be approximately equivalent in terms of both health protection and compliance burdens to the existing 0.12 ppm, one-hour NAAQS. The EPA Staff Paper for ozone, which is a summary of the health data and its policy implications prepared by the EPA staff between completion of the criteria document and publication of the proposed rule, concluded that an eight-hour ozone NAAQS in the range of 0.07 to 0.09 ppm would protect public health with some margin of safety. This 0.07-0.09 range identified by the Staff Paper established the range of possible alternatives considered in the subsequent rulemaking.

EPA likewise was moving toward a major change in the manner in which it regulated PM. In 1987, EPA had modified the NAAQS for PM from a standard based on all particles in the air, known as Total Suspended Particulate ("TSP"), to a standard that focused on particles with a diameter of 10 microns or smaller, the so-called "PM10" standard. EPA had made this change because only particles less than 10 microns in diameter can generally be respired into the human lung. Now, EPA was planning to issue a new standard for even smaller particles with a diameter less than 2.5 microns (PM2.5), based on a handful of new studies indicating that these smaller particles might be responsible for the majority of adverse health effects from PM. The so-called "fine" particle standard would be in addition to, rather than instead of, the existing PM10 standard, which EPA eventually determined would remain the standard for controlling course particles with diameters between 2.5 and 10 microns in diameter.(1)

Consistent with these expectations, EPA proposed a revised 8-hour ozone standard and a new PM2.5 standard in separate but simultaneous Federal Register notices published on December 13, 1996. The Agency proposed to change the existing 0.12 ppm, 1-hour average primary ozone standard to an 0.08 ppm, 8-hour average standard. It also proposed to add two new PM2.5 standards -- a 15 µg/m3 annual standard and a 50 µg/m3 daily standard -- while also keeping the existing PM10 standard.

The proposed standards immediately generated enormous attention and controversy. They received front-page coverage on most of the nation's leading newspapers, and generated a series of print and television advertisements by both industry and environmental groups warning of dire consequences if the standards respectively were, or were not, adopted. Congress got heavily involved in the issue, holding a series of heated hearings and threatening or in some cases introducing legislation to limit EPA's authority to proceed with its proposed standards. I believe the final number of comments submitted to EPA approached 100,000, although many of these consisted of postcards or form letters initiated by interest groups on one side of the issue or the other. Nevertheless, EPA received a roomful of more substantive comments, providing extensive argumentation and attached data and studies in favor of, or in opposition to, the proposed standards.

Many of the more detailed comments addressed the scientific basis of EPA's proposed standards. This focus on scientific issues largely resulted from EPA's insistence that it was prohibited from considering costs and feasibility in setting NAAQS standards, a position that had been upheld by the D.C. Circuit in previous judicial challenges to EPA NAAQS standards. EPA therefore claimed to base its decision on the proposed standards exclusively on "public health policy judgments in addition to determinations of a strictly scientific nature." Given that EPA purported to base its standards on scientific and public health determinations, most of the comments addressed the Agency's purported basis for the proposed standards.

For the ozone standard, EPA could draw on hundreds of published scientific studies on the respiratory health effects of ozone, but faced a formidable task in aggregating this massive amount of scientific data to select and support a specific proposed ozone standard. EPA not only had to decide to shift from a 1-hour to 8-hour averaging period for the standard, but also to select the level of the standard from within the 0.07 to 0.09 range identified by the EPA Staff Paper, and importantly to also select the format and method of measuring compliance with the standard. There are hundreds of potential variations within the range considered by EPA, with even what appears to be the smallest variation having potentially substantial consequences. For example, EPA's own assessment showed that the number of small business sectors significantly impacted by the new ozone standard would be cut almost in half had EPA chosen to measure compliance based on the fifth, rather than the fourth, highest annual concentration, with evidently no significant loss in health benefits.

EPA developed a complex risk assessment model that evaluated the health benefits of several different possible ozone standards in nine urban areas and which focused primarily on sensitive subpopulations such as children with asthma and workers and exercisers who engaged in moderate or strenuous outdoor activity on hot summer days. (Ozone is formed by the mixture of hydrocarbons and nitrogen oxides in the presence of sunlight, and therefore peak exposures occur on hot summer days). EPA identified a broad range of ozone-related health effects, ranging from difficulty in breathing and shortness of breath, to aggravated coughing and chest pain, to aggravation of asthma and chronic inflammation of the lung from repeated exposures that could lead to diseases such as bronchitis and emphysema. EPA expressly found that there was no threshold below which such adverse health effects would not occur. Significantly, although EPA stated that there was growing evidence suggesting an association between long-term ozone exposure and premature death, EPA did not claim that its ozone standard would prevent any deaths.(2)

Most of the scientific debate and comments on the proposed ozone standard concerned whether there was any significant differences in health benefits between the various possible options for the ozone standard. EPA claimed that the differences were significant, while many industry scientists challenged that conclusion and many of the assumptions underlying EPA's risk assessment model. The CASAC was unable to reach consensus on a specific ozone standard, although it agreed with EPA's decision to shift to an 8-hour standard. Of the eight CASAC members who expressed their "personal preferences," three members supported EPA's choice of an 0.08 ppm standard, three members favored 0.09 ppm, one supported a standard of either 0.08 or 0.09 ppm, and one member recommended 0.09 or 0.10 ppm. In their official communication back to EPA, CASAC concluded that "there is no 'bright line' which distinguishes any of the proposed standards (either the level or the number of allowable exceedences) as being significantly more protective of public health....Consequently, the selection of a specific level and number of allowable exceedences is a policy judgment." The fact that EPA's own official science advisory body advised that the standard could not be set based on science, but rather must be based on a policy judgment, was a very important and unprecedented development that subsequently proved quite damaging to EPA's assertion that it based its standards exclusively on scientific and public health considerations.

For fine PM, the scientific dispute was quite different. Unlike ozone, there were not hundreds of scientific studies on the health effects of fine particulates, primarily because there were very little monitoring data available for fine particles that could be used to study the potential association between ambient fine particle concentrations and various health effects. Nevertheless, there had been a handful of recent studies published that reported an apparent association between fine particulates and premature deaths. In fact, these studies suggested that fine particulates might be responsible for thousands of premature deaths per year. EPA relied primarily on this small set of studies that specifically evaluated fine particulates in deciding to propose its fine PM standard, and based on those studies, concluded that the new fine PM standard would save as many as 15,000 lives per year.

If indeed fine particulates were killing 15,000 people each year, it would be one of the most serious environmental health problems facing the nation, and EPA's action to reduce this threat would certainly be warranted. Critics, however, identified several concerns and problems with the science underlying EPA's proposal. First, unlike ozone, there were no controlled laboratory studies showing the adverse health effects of fine particulates, and therefore EPA based it standard solely on epidemiological studies evaluating the association between exposure levels and health effects in human populations, which in and of itself is not problematic. The problem was that unlike most epidemiology studies that measure or attempt to estimate the exposure history and health status of each individual in the study population or "cohort," the epidemiology studies on which EPA relied were so-called "ecological" studies that only estimate the cumulative exposure and health effects for an entire population, rather than for each individual within that population. Because such ecological studies are very imprecise and prone to bias, leading epidemiology textbooks state that these studies cannot be used to establish a causal relationship, but rather can only be used to generate hypotheses of possible associations that then must be evaluated using more precise epidemiology studies that measure or estimate individual exposures and health effects. In fact, EPA's own recently proposed risk assessment guidelines state that "[d]escriptive or correlation epidemiologic studies (sometimes called ecological studies) ... can only identify patterns or trends in disease occurrence over time or in different geographical locations but cannot ascertain the causal agent or degree of exposure. These studies, however, are often very useful for generating hypotheses for further research."(3) Notwithstanding these standards of epidemiological practice and its own guidelines, EPA concluded that there was a causal association between fine PM and premature fatalities based on these ecological studies.

A second potential problem was that there was no apparent mechanism by which fine particulates could be causing the alleged premature fatalities. The absence of a known causal mechanism does not automatically preclude the finding of a causal association, as evidenced by the established link between tobacco smoking and lung cancer despite the absence of a demonstrated biological mechanism. However, there was another problem with fine particulates that made the absence of a known mechanism particularly important. The fatalities that appeared to be induced by fine particulate concentrations occurred mostly within a few days of peak exposures to fine particulates. This presented a conundrum, because while chronic lung effects that eventually lead to death might be a plausible result of long-term exposure to PM, fine particulates instead appeared to be producing sudden deaths from short-term (or acute) exposures. Given the absence of any known biological mechanism by which fine particulates could have such an immediate effect on the human body, the biological plausibility of the association between fine PM and premature mortality was questioned. Some scientists speculated that peak concentrations of fine PM, or the hot and humid weather conditions that often occur simultaneously with such peak concentrations, may simply be "harvesting" very sick patients who are about to die in the very near future anyway. While such an argument appears somewhat odious and insensitive, if nevertheless valid it would present a difficult challenge to EPA in deciding how to value such deaths that shorten expected life spans by only a day or two compared to, for example, the value assigned to deaths of young children or healthy adults.

A third major problem with the science underlying EPA's fine PM standard was that the studies on which the Agency relied used complex regression models that attempted to control for other factors that may bias the association between fine particles and premature mortality. Such biases are very difficult to control completely, and could result in estimates that are either too high or too low (an effect called "confounding"). The problem is that the choice of which parameters to include in the model is somewhat arbitrary and a matter of judgment, and many industry scientists questioned whether the models used by the researchers on which EPA relied adequately controlled for potential confounding by other pollutants, weather conditions, or lifestyle factors (e.g., physical activity) that differed between the cities included in the relevant studies. Depending on which variables were included in the model, the resulting association between fine particulates and premature mortality could change dramatically or even disappear.

As with the revised ozone standard, EPA's Clean Air Scientific Advisory Committee was divided on the issues of whether and where to set the standard. For the annual PM2.5 standard, which EPA proposed to adopt at the level of 15 µg/m3, two members of CASAC recommended adoption of a standard between 15 and 20 µg/m3, five members supported a standard of 20 µg/m3 or higher, six members supported a standard without specifying a level, and eight members opposed setting any annual PM2.5 standard. For the daily standard, which EPA proposed at a level of 50 µg/m3 and ultimately adopted at 65 µg/m3, five members of CASAC recommended a standard of 50 µg/m3 or lower, one recommended a standard of 65 µg/m3 or higher, and three recommended a standard of 75 µg/m3 or higher. Eight other members supported a daily PM2.5 without indicating a preferred level, while four members opposed any daily PM2.5 standard.

While these scientific disputes about both the new ozone and fine PM standards were at the epicenter of the controversy during the rulemaking stages, many other policy, economic and legal issues were raised in comments to the Agency as well as in the media and Congressional debates. As we will see shortly, these legal and other issues moved to the forefront once the standards were challenged in court. However, before the standards could be challenged in court, they has to be finalized by EPA, and EPA took that step in July 1997 by publishing its final decision to adopt the standards. The Agency rejected essentially every argument made against its proposed standards, making only one small change by relaxing slightly the daily PM2.5 standard from the proposed level of 50 µg/m3 to a final level of 65 µg/m3. The new ozone and annual fine PM standards were adopted as initially proposed.

Between the proposal and finalization of the standards, EPA had only five months to consider and respond to the thousands of comments submitted to the Agency. Normally, EPA would take a year or even considerably longer to review such an extensive set of comments and prepare the substantial documentation that accompanies promulgation of a final standard. The extraordinarily tight time line under which EPA issued its standards was in part due to the federal district court order from the Sierra's Club citizen suit requiring the Agency to make a final decision on revising the PM standard by July 1997. However, part of the problem was also of EPA's own doing. When it became apparent that the PM court order would severely restrict the time for interested parties to prepare and submit comments and for EPA to consider those comments, industry and other groups asked EPA to de-link the ozone and PM standards. There was no court order requiring a final decision on the ozone standard by any specific deadline, and given the massive undertaking involved in modifying each of the PM and ozone standards, it made no sense to force both standards to comply with the district court's stringent deadlines, especially considering that the ozone and PM NAAQS had always been considered separately before.

EPA strongly resisted this attempt to de-link the ozone and PM proceedings. I and many other observers believe that the Agency's reason was purely political. The new ozone and PM standards each had different strengths that complemented the weaknesses of the other standard. By keeping the two standards together as a package, EPA could better defend the combined standards in the public domain without exposing the critical shortcomings of each. For example, while the ozone standard was based on hundreds of published scientific studies, the fine PM standard was based on only a few studies. Conversely, the fine PM standard would allegedly prevent thousands of premature fatalities, and if this were true, the benefits of the standard would far outweigh the costs. The ozone standard, according to EPA's own justification for its rule, would not result in saving any lives, and would impose costs that likely outweigh the benefits of the standard. By linking together the two standards, EPA was able to publicly defend the combined standards as being based on hundreds of scientific studies and savings thousands of lives. This strategy obscured the facts that the fine PM standard was based on an unprecedented skimpy scientific foundation, and that the ozone standard would save no lives and would impose costs on society that exceed the benefits.

EPA thus rejected the suggestion that it separate its ozone and PM standards, even though it meant imposing a herculean task on its own staff to sift through and respond to the thousands of comments on each of the PM and ozone standards. In fact, EPA tried to even more tightly bind the two standards together, by issuing a single final Regulatory Impact Analysis ("RIA") for the two sets of standards combined, when it had prepared separate draft RIAs for the ozone and PM rulemakings at the time it proposed its standards. As I will come back to later, I believe that this attempt by EPA to link the two standards back-fired and was at least partly responsible for the subsequent judicial invalidation of both standards.

Round II: The D.C. Circuit

EPA published its final ozone and PM standards in the Federal Register on July 17, 1997. Earlier that same day, at one minute after midnight, the first petitions for review challenging the ozone and PM standards were filed with the U.S. Court of Appeals for the D.C. Circuit. Over the next 60 days, the statutory period for filing such petitions, approximately 50 petitions for review were filed with the D.C. Circuit challenging each of the ozone and fine PM standards. (The Clean Air Act provides that petitions for review of EPA regulations of nationwide applicability can only be filed in the D.C. Circuit). Most of the petitions were filed by trade associations representing the trucking, auto, petroleum, mining, utility, farming and numerous others, as well as some cross-industry organizations such as the U.S. Chamber of Commerce, the National Association of Manufacturers, and several small business associations. In addition, three States -- Ohio, Michigan and West Virginia -- filed petitions challenging both the ozone and fine PM standards. Only one petition filed on behalf of four individuals challenged EPA's fine PM standard as being too lenient, while no petitions were filed challenging the ozone standard on the ground that it was too lenient. Thus, unlike most previous major environmental lawsuits, where industry challenges the EPA regulation as too stringent and environmentalists challenge the rule as too lenient, the challenges to the ozone and fine PM NAAQS were essentially from one side only (i.e., the standards were too stringent). Later, the American Lung Association and three northeast States (New York, Massachusetts and New Jersey) intervened on behalf of EPA in support of the standards as enacted. All the ozone petitions and all the PM petitions were consolidated into two separate cases, both captioned American Trucking Associations, et al., v. U.S. Environmental Protection Agency.

The organization of the litigation presented a tremendous management challenge for the petitioners, given the number and variety of parties. Every industry petitioner had its own outside counsel, but the D.C. Circuit strongly disfavors the filing of multiple briefs, and so it became necessary to organize the petitioners into a small number of groupings, each with its own lead counsel. After many large and long meetings, the industry and State petitioners agreed to organize themselves into three groups, each of which would file its own set of briefs. The first group of petitioners was designated the Non-State Clean Air Act petitioners, and consisted primarily of the many large business trade associations. This group argued that EPA violated the Clean Air Act in several different ways and treated the scientific evidence underlying its standards in an arbitrarily and capricious manner. This group of petitioners selected the law firm of Hunton & Williams to represent it in the ozone litigation, and the firm of Shaw, Pitman, Potts & Trowbridge to represent them in the fine PM litigation. The second group consisted of the small business petitioners, whose members would be particularly adversely impacted by the ozone and PM NAAQS. This group focused its attention on three arguments: (i) that EPA violated the Small Business Regulatory Enforcement Fairness Act ("SBREFA"); (ii) that EPA's interpretation of the Clean Air Act violated the non-delegation doctrine; and (iii) EPA acted unlawfully in failing to consider the health benefits of ground-level ozone. My former law firm (Kirkland & Ellis) was selected to represent this petitioner group in both the ozone and fine PM cases. The third group of petitioners would be the three State petitioners, who would also file their own briefs. In addition, a smaller group of petitioners, led by the mining industry, were formed to challenge the course particulate standard. It would not be too much of an exaggeration to say that almost as much time and resources went into reaching agreement on this organization, and convincing EPA and the Department of Justice ("DOJ") to accept this structure, than went into the actual litigation of the case!

Another organizational challenge for those litigating the industry side was to overcome the skepticism on the part of many business leaders on the likelihood of successfully challenging the EPA standards. Industry had mounted broad legal challenges to EPA NAAQS standards on three previous occasions, and in each case had been soundly defeated, with the D.C. Circuit professing to grant an almost unprecedented complete deference to EPA in the context of setting NAAQS standards. Many industry groups therefore focused their efforts and resources on persuading Congress to block EPA's standards, an undertaking that ultimately failed. While millions and millions of dollars were poured into the legislative battle, trade association lawyers and their outside counsel had a difficult time persuading most companies that the litigation effort was worth funding. I remember one particular meeting with many industry representatives early in the process where my former partner Ed Warren explained passionately why he believed that industry had as strong of a case here as in any case against the federal government he had seen in his thirty years of litigating this type of complex environmental case. His argument was met only with puzzled expressions, raised eyebrows and knowing smirks. I think it would come as a surprise to most outsiders to learn that it was an unusually difficult and ongoing struggle to obtain sufficient resources for industry lawyers to mount a credible litigation effort in this case, even though this litigation involved a challenge to the most expensive regulations EPA had ever adopted.

The common perception that EPA would almost surely win the litigation may, in the end, have done even more harm to the Agency than to industry, though. Throughout the rulemaking and the litigation, EPA's officials and lawyers appeared very confident that they would have a slam-dunk in the courts. This over-confidence may have contributed to EPA's defeat by failing to take seriously many of the arguments and the evidence put forward by industry, and taking what many perceived to be a "no compromise" approach throughout the proceedings.

Another preliminary issue in the litigation was how the two cases would be briefed and argued in relation to each other. Industry petitioners attempted once again to separate the ozone from the PM litigation by filing a motion to expedite the ozone case. Under EPA's implementation schedule, the ozone standard would be implemented much sooner than the fine PM standard, and especially given that some States were already contemplating changes to comply with the ozone standard, industry sought to litigate the ozone standard first. EPA and DOJ again resisted this attempt to de-link the ozone and fine PM standards, and after much negotiation, the parties finally agreed to brief the two cases on a staggered but overlapping schedule. The D.C. Circuit ended-up going even further than EPA by having the two cases argued in the same session (the oral argument exceeded three hours, whereas most federal appellate arguments only last 20-30 minutes), and then issuing a single decision for the two cases.

The D.C. Circuit issued its decision on May 14, 1999, finding that both the ozone and fine PM standards were unlawful. The court found three separate bases for invalidating the ozone standard, while invalidating the fine PM standard on a single basis. Both the ozone and PM standards were found to violate the non-delegation doctrine, while the ozone standard was also found unlawful because it was inconsistent with the 1990 statutory timetable for implementing the ozone NAAQS, and because EPA unlawfully failed to consider the health benefits of ground-level ozone. The latter holding was joined by all three judges on the D.C. Circuit panel, while one of the judges (Judge Tatel) dissented on the non-delegation holding and later on rehearing indicated his disagreement with the statutory timetable holding. The D.C. Circuit did not vacate the ozone and fine PM standards, but rather remanded the standards to EPA to attempt to remedy the defects identified by the court. The court assumed that EPA would not take any action to implement the invalidated standards unless and until they had been corrected, and retained jurisdiction to supervise EPA's attempted remedy and to reconsider its decision not to vacate the standards should EPA attempt to implement them in their current form.

EPA filed a petition for rehearing and rehearing en banc that was denied by a divided court on October 29, 1999. The panel did modify its holding on the ozone statutory timetable claim and provided some additional justification for its non-delegation holding, which along with the views of the dissenting judges are discussed below in the context of the individual claims. Before turning to the individual holdings on which EPA's standards were overturned, it is important to first identify some important arguments that EPA won in the litigation.

First, the D.C. Circuit upheld EPA's argument that the Agency was not required or permitted to consider economic costs or technological feasibility in promulgating or amending NAAQS. The panel considered this issue foreclosed by previous D.C. Circuit decisions which had reached the same conclusion. The problem with this holding is that, as several commentators have argued, EPA in fact does consider economic impacts in selecting its standard, it just does so behind closed doors without any public explanation or transparency.(4) For non-threshold pollutants such as ozone and PM, there is no truly "safe" level of the pollutant other than zero, which would of course be economically impossible to achieve. As my ASU colleague Professor Joe Feller has stated most cogently, "[i]f all costs are truly ignored, then no risk would be acceptable."(5)

Second, the D.C. Circuit gave short shrift to industry petitioners' arguments that EPA's treatment of the scientific evidence supporting its ozone and fine PM standards was arbitrary and capricious. Both at oral argument and in its decision, the panel abruptly dismissed such arguments on the ground that such scientific issues were solely within the domain of the expert agency and were not an appropriate subject for judicial scrutiny. Thus, even though these scientific disputes were central to the debate on the standards at the agency rulemaking stage, these scientific issues were essentially exempt from meaningful judicial review. This approach has contributed to what Professor Wendy Wagner has described as the "science charade," in which agencies disguise policy determinations as scientific findings in order to avoid judicial review and circumvent political accountability.(6) In the NAAQS rulemaking, EPA increasingly relied on scientific arguments to defend its standards as the rulemaking proceeded, even though EPA's own science advisory body had advised that the selection of the ozone standard could not be based on science, but was rather a policy determination. (The more EPA relied on science to defend its standards, the more industry took issue with EPA's scientific justification, which is why this debate on this issue became so prominent.) EPA's reliance on the "science charade" to defend its ozone and fine PM standards is nicely illustrated by two quotes by EPA Administrator Carol Browner that are brought together in an insightful article on the case by Professor Craig Oren.(7) Professor Oren quotes the Administrator as saying in December 1996, at the time the ozone and fine PM standards were first proposed, that "[t]he question is not one of science, the real question is one of judgment." Four months later, at the height of the public, Congressional and regulatory debate on the standards, Administrator Browner made a 180 degree reversal by stating in March 1997 that "I think it is not a question of judgment, I think it is a question of science." To the extent EPA was able to recast its justification for its ozone and fine PM standards as based on science, it received a "free pass" from the court.

Finally, the D.C. Circuit upheld EPA's argument that it did not violate the Small Business Regulatory Enforcement Fairness Act ("SBREFA").(8) SBREFA was adopted almost unanimously by Congress in 1996 to strengthen the 1980 Regulatory Flexibility Act ("RFA"), which required agencies to prepare a regulatory flexibility analysis to consider, and adopt when permitted by the statute under which it is regulating, alternatives that are less burdensome on small businesses. One of the primary purposes of SBREFA was to close a loophole in the RFA that exempted agencies from preparing a regulatory flexibility analysis if the agency certified that its regulation "will not have a significant economic impact on a substantial number of small entities."(9) Finding that agencies (including particularly EPA) had frequently abused this provision to exempt regulations that adversely impacted small businesses, Congress provided in SBREFA for judicial review of an agency's compliance with the RFA. EPA nevertheless certified that the ozone and fine PM NAAQS standards would not significantly impact small entities, because private parties would not be directly subject to the NAAQS standards themselves, but rather only to state regulations implementing the NAAQS. EPA made this certification despite the findings of its own RIA that small businesses would be disproportionately affected by the NAAQS standards, and many would be put out of business. This technical distinction was upheld by the D.C. Circuit, which based on some previous precedent held that EPA was only required to consider the impacts of its NAAQS on the entities directly subject to the NAAQS, which are the States. This holding will have the effect of limiting the applicability of the RFA and SBREFA to the two-step programs that are the core of most environmental statutes, in which EPA adopts overall requirements and then States are charged with implementing them. States are not subject to the RFA, and thus many if not most environmental programs will be exempted from the RFA by this decision, even though the legislative histories of both the RFA and SBREFA are rife with references to the need to apply those statutes to EPA specifically.

Turning now to the issues on which EPA was over-ruled, the holding that has received the most attention, and which is the most important given that it applies to both the ozone and fine PM NAAQS, is that EPA's interpretation of the Clean Air Act violates the non-delegation doctrine. The non-delegation doctrine requires that Congress must provide an "intelligible principle"to limit agency discretion when it delegates authority to a regulatory agency. As Professor Cass Sunstein has written in his analysis of the ATA decision, the non-delegation doctrine only had one good year, as it was used by the Supreme Court in 1935 to invalidate two statutes, but has not been used in that way since.(10) However, as Professor Sunstein then discusses, the non-delegation has occasionally been used in a more subtle fashion in recent years. In particular, in a 1980 decision overturning OSHA's occupational health standard for benzene, the plurality countered a dissent by Justice Rehnquist arguing that the Occupational Safety and Health Act violated the non-delegation doctrine by adopting and imposing on the agency its own intelligible principle to cabin OSHA's otherwise broad discretion.(11) In particular, the Supreme Court held that OSHA could only regulate occupational hazards that the agency found presented a "significant risk" to worker health, even though no such requirement existed in the direct language of the statute. A few years later, the D.C. Circuit similarly held that an OSHA safety standard (the so-called "lock-out/tag-out" standard) violated the non-delegation doctrine because the agency failed to articulate an intelligible principle to justify the selection of its adopted standard, and remanded the case to OSHA to develop such decision-making criteria.(12)

The D.C. Circuit used similar reasoning to invalidate EPA's ozone and fine PM NAAQS. After noting that EPA based its standards on consideration of the frequency and severity of adverse health effects attributed to ozone or fine PM exposure, the court held that "EPA appears to have articulated no 'intelligible principle' to channel its application of these factors; nor is one apparent from the statute. The non-delegation doctrine requires such a principle." ATA, 175 F.3d at 1034. Rejecting arguments by EPA and a dissent by Judge Tatel that the Agency adequately explained the reasons why it selected the particular standards it adopted, the majority observed that "EPA's explanations for its decisions amount to assertions that a less stringent standard would allow the relevant pollutant to inflict a greater quantum of harm on public health, and that a less stringent standard would result in less harm." Id. at 1035.

Indeed, EPA expressly refused to articulate specific criteria or "intelligible principles" to guide its discretion in promulgating NAAQS standards. In rejecting public comments that it must adopt such criteria, EPA argued that "no generalized paradigm ... can substitute for the Administrator's careful and reasoned assessment of all relevant health factors in reaching ... a judgment." 62 Fed. Reg. at 38883. Moreover, because the Agency's determination is "largely judgmental in nature," it "may not be amendable to quantification in terms of what risk is 'acceptable' or any other metric." Id. (emphasis added). EPA even argued that it can change its approach for setting NAAQS on a case-by-case basis, stating that "the Administrator is not limited to any single approach to determining an adequate margin of safety and may, in the exercise of her judgment, choose an integrative approach, a two-step approach, or perhaps some other approach, depending on the particular circumstances confronting her in a given NAAQS review." Id. at 38883. No doubt emboldened by the broad deference reviewing courts have previously granted EPA in reviewing NAAQS standards, EPA advocated this standard-less approach for setting NAAQS in sharp contrast to other regulatory programs in which EPA has defined acceptable risk criteria to guide its decision-making.

Like many of the petitioners, the D.C. Circuit was troubled by EPA's claim to such unconstrained authority to adopt NAAQS standards. The EPA Administrator is an unelected bureaucrat, but under EPA's interpretation would have the authority to adopt standards costing billions of dollars every year and affecting the health of millions of Americans without any defined criteria for making such decisions. The need for such criteria is particularly trenchant for the ozone NAAQS, where there are hundreds of possible standards within the 0.07 to 0.09 ppm range that EPA itself concluded would protect the public health with some margin of safety, and we really have no idea why EPA selected the particular variant it adopted over the numerous other alternatives. The D.C. Circuit identified two benefits of requiring EPA to develop "determinative, binding standards for itself." 175 F.3d at 1038. First, such articulated criteria would make it much more difficult for EPA "to exercise the delegated authority arbitrarily," because the public would have pre-announced criteria against which to evaluate the EPA decision. Second, the adoption of binding criteria would provide guideposts that reviewing courts could use to evaluate EPA's decisions, thus enhancing the feasibility of meaningful judicial review." Id.

The majority's non-delegation holding has been sharply criticized by several scholars and other judges, who point out that the non-delegation doctrine has traditionally been understood as imposing limits on Congress' delegation authority, and thus applies to legislation adopted by Congress rather than to regulations adopted by agencies under that legislation. Moreover, the non-delegation doctrine has long been considered dead and buried, given its long dormancy and the prevalence and indeed need for broad statutory delegations in the modern administrative state. Indeed, on EPA's petition for rehearing en banc, only four of the nine D.C. Circuit judges who voted on EPA's petition endorsed the panel's non-delegation holding. (The rehearing petition was nevertheless denied because D.C. Circuit rules require that a majority of the judges sitting on the court must vote in favor of rehearing en banc, which did not occur here because only 9 of the 11 sitting judges voted on the rehearing petition). One of the five judges (Judge Silberman) who voted against the non-delegation holding, as well as scholars such as professors Oren and Sunstein, have suggested that the court should have invalidated EPA's standards on the alternative ground that EPA failed to sufficiently explain the basis of its decision. It is quite possible that if the Supreme Court hears this case, it will consider this alternative approach, about which I will say a little bit more later.

In defending its initial non-delegation holding in response to EPA's petition for rehearing, the panel explained with greater clarity its reasoning for remanding the rule to EPA to develop intelligible principles, rather than to invalidate the Clean Air Act under the traditional application of the non-delegation doctrine. With the adoption of the Supreme Court's Chevron decision in 1986, agencies now get the first opportunity to interpret the statutes they administer, and reviewing courts are only to reject that agency interpretation if it is contrary to the clearly expressed intent of Congress or is unreasonable. Consistent with this Chevron approach to statutory interpretation, it would be inappropriate for a court to invalidate a statute as unconstitutional without giving the agency, as the primary interpreter of that statute, an opportunity to develop intelligible principles consistent with the statutory language and intent. Only if the agency fails to adopt such criteria should the court rule the statute unconstitutional. This new approach to the non-delegation doctrine is thus a natural outgrowth of Chevron and is more deferential to the agency than the Supreme Court's approach in its 1980 Benzene decision, where the court itself created an intelligible principle from the statute that it then imposed on the Agency. Seen in this light, the D.C. Circuit's non-delegation holding is not as radical as it has often been portrayed, and I would argue that is defensible on both legal and policy grounds.

The second ground for invalidating the ozone standard was that EPA had failed to consider the health benefits of ground-level ozone. Ozone pollution at the ground level, like naturally-occurring ozone much higher up in the stratosphere, absorbs harmful UV-B rays from the sun that can cause skin cancer, cataracts and other health problems. Thus, in addition to its harmful effects on the respiratory system, ground level ozone also provides some health benefits. To provide the best overall protection of public health, EPA must accordingly consider both the health risks and health benefits of ground-level ozone when setting an ozone standard. The Department of Energy ("DOE"), in testimony before the EPA's CASAC concerning the proposed ozone NAAQS, made this point clearly:

[I]t is known that UV-B penetration in the atmosphere, and its associated health risks, are affected by total column ozone, and that any decrease in atmospheric ozone will result in increased penetration of UV-B to the earth's surface. Therefore, tropospheric ozone pollution helps to attenuate UV-B-related health effects at the same time that this ozone is causing other health effects. When developing new ozone standards, we think that it is important to use all the available scientific information to assure that a balanced position addresses this conundrum.(13)

The DOE emphasized that "the relationship between changes in the column ozone and UV-B are direct. We are talking about the same molecule, ozone, whenever we are talking about this." Id.

A growing body of scientific data demonstrates that ground-level ozone does indeed exert a significant protective effect against UV-B radiation. One recent study compared ground-level ozone and UV-B radiation levels in Germany and New Zealand, which are approximately equi-distant from the equator, an important factor affecting UV-B radiation levels.(14) After controlling for other factors, the study found that the lower levels of ground-level ozone in New Zealand results in approximately 25 percent higher UV-B than in the more-polluted Germany, where the ground level ozone plays a major role in protecting against UV-B radiation. Several other published scientific studies show similar results. The Department of Energy used EPA's own risk numbers from its rulemaking to ban CFCs in order to stop depletion of stratospheric ozone, and concluded that a 0.5 percent decrease in total column ozone as a result of a more stringent ozone NAAQS standard would result in: (i) 2,000-11,000 extra cases of non-melanoma skin cancer per year; (ii) 130-260 extra cases of melanoma, including 25-50 deaths per year; and (iii) 28,000 new cataract cases per year, as well as other unquantified adverse effects. A peer-reviewed scientific paper by two OMB staff members reached a similar conclusion.(15) The study calculated that a 10 parts per billion ("ppb") decline in tropospheric ozone levels would result in 3,000 to 10,000 additional non-melanoma skin cancer cases per year, with 37 to 130 additional fatalities from these types of skin cancers. Using the same methods and assumptions applied by EPA, the authors found that the monetized value of the "the UV-B-related adverse health effects of reducing tropospheric O3 to comply with the current O3 NAAQS or to attain EPA's proposed more stringent NAAQS may be similar in magnitude to the respiratory-related beneficial health effects of such an O3 reduction."

Despite this and much other scientific information submitted to EPA, the Agency steadfastly refused to consider the health benefits of ozone. The issue was first raised at an early CASAC meeting by a DOE representative, but EPA staff quickly cut off the discussion, saying that the issue did not need to be considered by CASAC for the criteria document because the issue would be addressed by EPA in "other fora." The EPA staff conceded at that meeting that the beneficial health effects of ground-level ozone "could be big" and cannot "be dismissed as a trivial thing," and therefore would need to be addressed in the rulemaking, but at some other time. Nevertheless, when EPA proposed its ozone standard over two years later, there was no discussion of the health benefits of ozone in the proposed regulation, and EPA had not weighed the health benefits of ground-level ozone against the health risks in setting the proposed standard.

Many industry groups were reluctant to address this issue, either because they had taken an inconsistent position in opposing EPA's rule to protect stratospheric ozone, or because they believed the argument that pollution may have beneficial effects too controversial and easy to demagog. This latter concern was demonstrated by a parody that appeared in the N.Y. Times editorial pages that purported to advertise "smog in a can" for its beneficial effects. Nevertheless, I prepared almost 20 pages of detailed comments on this issue for one of our firm's clients (General Motors), which were submitted to EPA along with almost two dozen scientific studies supporting the argument that ground level ozone provided significant health benefits.

EPA responded in detail to every other major comment it received in its extensive Federal Register notice accompanying its final ozone standard. It made no mention, however, of the health benefits of ground-level ozone, ands once again failed to balance these health benefits against the health risks in finalizing the ozone standard. Rather, EPA's response to GM's arguments about the health benefits of ozone were relegated to the "Response to Comments" document, a much more obscure document that is not widely available. This EPA attempt to denigrate the importance of the ozone health benefits argument is representative of the way EPA sought to ignore this issue throughout the proceeding. EPA and its lawyers were no doubt surprised, therefore, when the first 20 minutes of EPA's oral argument on the ozone standard, essentially the entire time that the court had allotted for EPA's argument, was taken up solely by the court's aggressive questioning on the way that EPA had treated this issue -- questions for which EPA had no good answers.

In its Response to Comments document, appellate briefs, and oral argument, EPA tried to mount two principal defenses of its disregard of the health benefits of ozone. Its primary defense was to argue that the statute prohibited the Agency from considering these health benefits.

Yet, the statute expressly requires that EPA consider "all identifiable effects on public health or welfare which may be expected from the presence of such pollutant in the ambient air." CAA §108(a)(2), 42 U.S.C. §7408(a)(2) (emphasis added). The D.C. Circuit rejected EPA's legal argument that "all identifiable effects on public health" means only adverse and not beneficial effects on public health. The statute is unambiguous; "all" means "all." The court went further and held that even if the statute were ambiguous, EPA's interpretation excluding consideration of health benefits would surely be unreasonable. In the words of the court, "it seems bizarre that a statute intended to improve human health would, as EPA claimed at argument, lock the agency into looking at only one half of a substance's health effects in determining the maximum level for that substance." (175 F.3d at 1052).

The D.C. Circuit also rejected EPA's alternative argument that the health benefits of ground-level ozone were too uncertain or insignificant to be considered. The D.C. Circuit stated that "we can see no reason for imposing a higher information threshold for beneficent effects than for maleficent ones." The health risks of ground-level ozone were also very uncertain, but that did not stop EPA from relying on its best estimates of those risks notwithstanding the substantial uncertainty. EPA's inconsistency is perhaps illustrated best by its previous rejection in the CFC ban rulemaking of industry arguments that the health benefits of stratospheric ozone depletion by CFCs were too uncertain or unreliable to be calculated and used to support regulatory action. As to EPA's argument that the health benefits of ground-level ozone were too small to be considered, every relevant study in the record found that EPA's ozone NAAQS would result in many fatalities and hundreds if not thousands of additional cancer cases each year from the resulting increase in UV-B radiation. In contrast, EPA's ozone standard would not save a single life, according to EPA's own rulemaking justification. Thus, if the health benefits of ground-level ozone are too trivial to even be considered, the even smaller health risks of ground-level ozone certainly do not justify promulgating a regulation that imposes costs of many billions of dollars per year. The court concluded that it need not even address EPA's arguments that the comments and studies submitted to EPA inflated the health benefits of ground-level ozone given that EPA had improperly chosen "to give the studies no weight at all." (175 F.3d at 1052).

All three judges on the D.C. panel supported the court's holding finding that EPA had improperly failed to consider the health benefits of ground-level ozone, and no judge on the entire court expressed disagreement with this holding on EPA's petition for rehearing en banc. Despite this overwhelming repudiation, EPA remains defiant against considering the health benefits of ground-level ozone. Administrator Browner has described this holding as "one of the most bizarre sections of the decision." This is one of a growing number of examples were EPA, intent on achieving a particular regulatory objective, has disregarded the risk-risk trade-offs of its actions, and may end up adopting a non-optimal regulation or even one that does more harm than good to public health.(16)

Finally, let me address just briefly the third ground on which the Court found EPA's ozone standard unlawful. For many years, certain areas of the country such as southern California failed to achieve attainment with the ozone NAAQS. This chronic nonattainment created a political dilemma. On one hand, it represented a clear violation of federal law, and a health threat to the citizens who continued to breath unhealthy air because of the ongoing nonattainment. On the other hand, politicians were reluctant to force the non-compliant areas into prompt attainment because of the economic costs and dislocation that such measures, or the sanctions of failing to apply such measures, would impose. Congress attempted to resolve this difficult political issue in the 1990 Clean Air Act Amendments by adding a new subpart 2 to Title I of the Clean Air Act that established a precise timetable and specific milestones for achieving compliance with the existing ozone standard in every region of the country. Some areas of the country were given considerably more time than would otherwise be allowed under the statute to achieve compliance. For example, the Los Angeles area was given 20 additional years (to 2010) to achieve attainment with the 0.12 ppm, 1-hour standard. This statutory timetable applied expressly to the existing 0.12 ppm standard, and the classifications and schedules included in the statute simply would not fit a different ozone standard.

Industry petitioners argued that the enactment of subpart 2 codified the existing 0.12 ppm ozone standard, and EPA could therefore not modify the existing standard without a Congressional modification or over-ride of subpart 2 as enacted. The problem was that Congress did not amend section 109(b) requiring EPA to periodically evaluate and amend, where appropriate, each of the existing NAAQS standards, including the ozone standard. On the other hand, it did not seem appropriate for EPA to be able to undo Congress' carefully wrought compromise on ozone attainment schedules. For example, it would be unfair to southern California to require it to meet EPA's new, more stringent 0.08 ppm standard before it would have been required by Congress to meet the old standard of 0.12 ppm. In its initial opinion, the three-judge panel of the D.C. Circuit unanimously held that Congress did not change section 109(d) and therefore did not prevent EPA from promulgating a new ozone NAAQS, but because enforcement of such a standard would be inconsistent with the statutory timetable provided in subpart 2, EPA would be prevented from enforcing its new ozone NAAQS. On EPA's petition for rehearing, the panel modified its holding to remand the issue to EPA with the instruction that the Agency could only enforce its new ozone NAAQS in conformance with the statutory provisions in subpart 2. It remains to be seen whether and how EPA can meet this requirement to conform the new ozone standard to the subpart 2 schedule, assuming it ever overcomes the other bases on which the ozone standard was invalidated.

Round Three: To The Supreme Court and Beyond?

In late January, EPA filed a petition of certiorari seeking Supreme Court review of the D.C. Circuit's decision. Of the three grounds on which the D.C. Circuit disagreed with EPA, the Agency only sought Supreme Court review of the non-delegation and statutory deadlines holdings, and thus did not seek certiorari on the ozone health benefits issue.

There is a strong likelihood that the Supreme Court will grant certiorari to review the D.C. Circuit's non-delegation holding, giving its novelty and Constitutional dimensions. If the Supreme Court votes to uphold the D.C. Circuit's holding, it may do so on the non-delegation ground applied by the D.C. Circuit, or it may do so on the slightly different ground advocated by several academic commentators that EPA has a duty to articulate decision-making criteria under the administrative law requirement that an agency adequately explain and justify its decision. I do not think it makes a tremendous difference which of these grounds is adopted by the Supreme Court, as the practical effect will be essentially the same. EPA will have to go back and articulate objective criteria for setting NAAQS standards under either approach, and likewise the decision on either grounds will set a powerful precedent for requiring such criteria in other regulatory programs. Given the otherwise carte blanche discretion and lack of accountability that EPA would have to set NAAQS standards with such public health and economic importance, I believe it is both imperative and likely that the Supreme Court will set aside EPA's ozone standard on one of these two alternative grounds.

On the statutory deadline issue, EPA's primary argument to the Supreme Court is that this is an implementation issue that is unripe for judicial decision making. Because the modification on rehearing of the D.C. Circuit's holding on this issue appears to put the ball back in EPA's court to see if it can reconcile its enforcement of the new ozone standard with the statutory timetable, it is unclear what the Supreme Court is likely to do with this issue, if it decides to consider the issue at all.

If the Supreme Court takes one or more of the issues on which EPA seeks certiorari, the case will likely be briefed later this year and decided in the spring of 2001, nearly four years after EPA adopted its revised ozone and fine PM NAAQS. At that point, unless the Supreme Court reverses the D.C. Circuit on both issues, the standards will be remanded to EPA for Round Four of this battle. By that time, many of you who are in law school now may be in private practice and will likely be closely following or even participating in those future proceedings on behalf of your clients.

In the meantime, EPA will have to address the health benefits of ground level ozone. Given its pattern of resisting consideration of this issue at every stage of the previous rulemaking, and its stated opposition to the D.C. Circuit's holding, one may question whether EPA will provide a fair and objective scientific evaluation of this issue. Without meaningful judicial review of such scientific issues, there is a need for some other institutional arrangement to ensure that an Agency such as EPA, which has demonstrated a clear bias on this issue, can bring to bear the best scientific knowledge and judgment to select an optimal form of the ozone standard that maximizes net health benefits.

Let me make one final observation. A recurrent issue at every stage of this matter was whether the ozone and PM standards should be linked together or separated. As discussed above, EPA fought hard to keep the two standards together, while industry tried repeatedly to pry them apart. It is ironic, therefore, that the linkage of the two standards may have contributed to the defeat of each. The only ground on which the fine PM standard was over-turned was the non-delegation doctrine, but this argument was much more obvious and compelling for the ozone standard, in which there was a large range of regulatory options from which EPA had to choose with nearly indistinguishable health benefits. In fact, the only mention of the non-delegation argument in any of the parties' briefs in the fine PM case was a single sentence in the brief we prepared on behalf of small business petitioners. But because the fine PM and ozone standards were argued and decided together, the court had little choice but to apply its holding to both the ozone and fine PM standards, because the holding applies to EPA's generic criteria for promulgating NAAQS. Nevertheless, if the fine PM standard had been litigated separately, the non-delegation issue might never had arisen, just as it didn't in any of the previous NAAQS cases. EPA's defense of its ozone standard may also have suffered from its linkage to the fine PM standard. This linkage resulted in putting the ozone standard on the very strict timetable required by the fine PM court order, which may have adversely affected EPA's ability to properly consider and respond to the various comments it received, such as the issue of the ozone health benefits. Thus, EPA's strategic ploy to link the two standards in order to camouflage their respective shortcomings may, in the end, have contributed to their downfall.

1. While some minor modifications were made to the PM10 standard in EPA's rulemaking, the standard continued to regulate both course (i.e., 2.5 to 10 microns) and fine (<2.5 microns) particles. EPA's failure to explain why it did not attempt to separate out these two sizes of particles and adopt a standard specifically for course particles after it adopted a new PM2.5 standard led to invalidation of the PM10 standard in the subsequent litigation. Because this issue was dealt with separately throughout the litigation, I will not address it further here and instead limit my discussion to the revised ozone and new fine PM standards, which were the main focus of EPA's rulemaking and the subsequent litigation.

2. EPA did include some reduced fatalities from the revised ozone standard in its Regulatory Impact Analysis, which was not part of the justification for the standard and was not reviewed by CASAC. Even there, though, EPA made explicitly clear that it was not claiming any reduced fatalities in the official justification of its standard.

3. 61 Fed. Reg. 17960, 17973 (April 23, 1996) (emphasis added).

4. See, e.g., Marc K. Landy, Marc J. Roberts & Stephen R. Thomas, The Environmental Protection Agency: Asking the Wrong Questions (1990); C. Boyden Gray, The Clean Air Act Under Regulatory Reform, 11 Tul. Envtl. L.J. 235 (1998); Gary Marchant, Turning Two Blind Eyes: The EPA's Failure to Consider Costs and Health Disbenefits in Revising the Ozone Standard, 11 Tul. Envtl. L.J. 261 (1998).

5. J. M. Feller, Non-Threshold Pollutants and Air Quality Standards, 24 Environmental Law 821, 833 (1994).

6. Wendy E. Wagner, The Science Charade in Toxic Risk Regulation, 95 Columbia L. Rev. 1613 (1995).

7. Craig N. Oren, Run Over By American Trucking Part I; Can EPA Revive Its Air Quality Standards?, 29 Envtl. L. Rep. 10653 (Nov. 1999).

8. Pub. L. No. 104-121, 110 Stat. 847 (1996).

9. 5 U.S.C. § 605(b).

10. Cass R. Sunstein, Is the Clean Air Act Unconstitutional?, 98 Mich. L. Rev. 3030 (1999).

11. Industrial Union Dep't, AFL-CIO v. American Petroleum Inst., 448 U.S. 607, 646 (1980).

12. International Union v. OSHA, 938 F.2d 1310, 1317 (D.C. Cir. 1991).

13. Transcript, Clean Air Act Scientific Advisory Committee CASAC Ozone Review Panel, Public Meeting - March 21, 1995, at 203-04 (statement of Marvin Frazier, DOE).

14. G. Seckmeyer and R.L. McKenzie. "Increased Ultraviolet Radiation in New Zealand (45o S) Relative to Germany (48o N)." 359 Nature 135 (1992).

15. R. Lutter and C. Wolz. UV-B Screening by Tropospheric Ozone: Implications for the National Ambient Air Quality Standard. 31 Envtl Sci. Technol. 142A (1997).

16. See, e.g., E. Warren & G. Marchant, More Good than Harm: A First Principle for Environmental Agencies and Reviewing Courts, 20 Ecology L. Q. 379 (1993).

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