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Whitman v. American Trucking Ass'n

ELR Citation: 31 ELR 20512
Nos. No. 99-1257, 531 U.S. 457/121 U.S. 903/(U.S., 02/27/2001)

The Court holds that the U.S. Environmental Protection Agency (EPA) may not consider implementation costs in setting primary and secondary national ambient air quality standards (NAAQS), that the Clean Air Act (CAA) does not unconstitutionally delegate legislative power to EPA, and that EPA's interpretation of the CAA relating to the implementation of the revised ozone NAAQS was unreasonable. Industry representatives and several states brought suit against EPA in the D.C. Circuit Court in 1997 challenging EPA's revised NAAQS for particulate matter and ozone. The court first holds that the text of CAA §109(b)(1) unambiguously bars cost consideration from the NAAQS-setting process. Contrary to the challengers' argument, the CAA §109(b)(1) terms "adequate margin" and "requisite" do not leave room to pad health effects with cost concerns. Similarly, even if NAAQS could be based on criteria outside of documents developed under CAA §§108(a)(2) and 109(b)(1), cost would not be one of the enumerated factors that EPA could consider. Additionally, the directive in CAA §108(b)(1) for EPA to issue to the states information on air pollution control techniques that includes the cost of installation and operation has no bearing on whether cost considerations are to be taken into account in formulating the standards.

The Court next holds that the circuit court erred in concluding that CAA §109(b)(1) unconstitutionally violates the nondelegation doctrine. The limits on EPA's discretion in promulgating NAAQS under CAA §109(b)(1) are similar to those approved of by the Court in other challenges to agency standard-setting authority and are well within the outer limits of nondelegation precedents. The Court then holds that the circuit court had jurisdiction to review EPA's implementation policy of the revised ozone NAAQS because the policy constituted final agency action ripe for review. However, the Court holds that the policy was unlawful. The CAA is ambiguous as to the interaction between part D, subpart 1, which contains nonattainment regulations pertaining to every pollutant for which a NAAQS exist, and subpart 2, which contains rules tailored to specific individual pollutants, ozone being at issue here. Accepting EPA's interpretation of the statute would render subpart 2's carefully designed restrictions on EPA discretion nugatory once a new ozone NAAQS has been promulgated. Subpart 2 eliminates regulatory discretion that subpart 1 allows, and EPA may not construe the statute in a way that completely nullifies textually applicable provisions meant to limit its discretion. Further, although subpart 2 was written to govern implementation for some time into the future, there was nothing in EPA's interpretation that would have prevented the Agency from aborting the subpart the day after it was enacted.

[Prior decisions in this litigation are published at 29 ELR 21071 and 30 ELR 20119.]

Counsel for Petitioner
Mary F. Edgar
Environment and Natural Resources Division
U.S. Department of Justice, Washington DC 20530
(202) 514-2000

Counsel for Respondent
Edward W. Warren
Hunton & Williams
1900 K St. NW, Washington DC 20006
(202) 955-1500

Scalia, J. Rehnquist, Stevens, O'Connor, Kennedy, Souter, Thomas, and Ginsburg, JJ., join in Part II; Rehnquist, O'Connor, Kennedy, Thomas, Ginsburg, and Breyer, JJ., join in Part III; Thomas, J., concurs separately; Stevens, J., concurs in part separately, joined by Souter, J.; and Breyer, J., concurs separately.