Transcript

IN THE SUPREME COURT OF THE UNITED STATES

AMERICAN TRUCKING ASSOCIATIONS, INC., CHAMBER OF COMMERCE OF THE UNITED STATES, ET AL., Cross-Petitioners, CAROL M. BROWNER, ADMINISTRATOR OF THE ENVIRONMENTAL PROTECTION AGENCY, ET AL.

No. 99-1426

November 7, 2000

The above-entitled matter came on for oral argument before the Supreme Court of the United States at 11:15 a.m.

APPEARANCES: EDWARD W. WARREN, ESQ., Washington, D.C.; on behalf of the Petitioners.

SETH P. WAXMAN. ESQ., Solicitor General of the United States, Washington, D.C.; on behalf of the Respondent.

PROCEEDINGS

CHIEF JUSTICE RENQUIST: We'll hear argument next in a companion case, number 99-1426, American Trucking Association vs. Carol Browner with the same attorneys back for an encore.

ORAL ARGUMENT OF EDWARD W. WARREN ON BEHALF OF THE PETITIONERS

MR. WARREN: Mr. Chief Justice, may it please the court again. The -- I don't want to return to the delegation issue, other than to repeat and emphasize that this agency wishes to regulate every nook and cranny of this environment for air pollution reasons, and yet said to the Court of Appeals, nothing in the statute requires her to make any specific findings or to structure her decision making in any particular way.

Now, with that said, I want to turn to the statute. And I want to start a little bit out of order because in my first argument, I intended, I didn't get a chance to respond to, Justice O'Connor's colloquy with General Waxman. You asked, Justice O'Connor, about Section 109(d) of the Act which requires the CASAC committee to advise the administrator on any adverse public health, welfare, social, economic and so forth effects, and Mr. Waxman said two things that I want to very much disagree with. He said that's in a different provision of the statute. Well, it's not. It's in the standard setting provision. It's in Section 109. It refers to standard setting, and entails standard setting.

Secondly, the statute makes clear in the judicial review provisions, and I'm looking at pages 6-A and 7-A of my blue brief, that's the Petitioner's brief. It says that the administrator must set forth a statement summarizing --

QUESTION: Whereabouts on page 6-A and 7-A are you reading from?

MR. WARREN: I'm now on page 7-A and I'm looking at the judicial review provision which is Section 307(d)(3)(c).

QUESTION: Where it starts the major legal --

MR. WARREN: It's at the top of the -- yes, yes. In other words, I'm reading about the statement that the administrator must provide, which is the next sentence, and it says it must set forth the pertinent findings, recommendations and comments and so forth, and if her proposal, and you'll notice it says Section 109(d), that's 7409(d) is all of Section 109(d), it's not excluding out the parts that General Waxman would exclude out. What it says is that she has to say where she differs with the CASAC, and where she agrees with the CASAC, and so forth. So this information that Justice O'Connor, you referred to in your question, is very much part of the standard setting process. It's very much part of what the administrator has to say when she promulgates a standard, and it's very much part of the judicial review provision.

Now, if I can return to the core provisions of the statute. Requisite to protect the public health with an adequate margin of safety. Now, I'm going to talk mostly about public health this morning, but that doesn't mean that there aren't other words that you should pay attention to, and other provisions in Section 108 and 109. I just would like to focus on public health because I think it's so doggone central.

Now, what does it mean to protect the public health? Now, public health is not defined in the statute. We all agree on that. It has to take on its natural and ordinary meaning under this Court's decisions.

QUESTION: Well, but the administrator surely has some latitude in defining it since it isn't defined in the statute.

MR. WARREN: Well, Mr. Chief Justice, I would agree with that with this point in mind. If the administrator defines public health so that it excludes all countervailing factors, what you are doing is handing over to the administrator a decision of far, far-reaching economic and political significance, and under this Court's decisions, the MCI line of cases, the Court just doesn't presume those kinds of delegations lightly, so my point would be, of course, the administrator in this provision and others has discretion, but it doesn't have discretion --

QUESTION: May I ask on your countervailing factors, are you referring to countervailing health factors, as well as countervailing economic factors?

MR. WARREN: I am indeed.

QUESTION: And do you interpret what she has done is to exclude all countervailing health factors?

MR. WARREN: Yes. That's what the lead industry's line of cases says, and really that's what the Court of Appeals said too.

QUESTION: You think lead industry holds that they may not consider countervailing health factors, as opposed to countervailing economic factors?

MR. WARREN: The Court of Appeals in this case, and this involves the protective effect and ground level ozone, held that the statute required her to consider that. But, but what I'm saying about public health, and I want to, what I'm saying about public health is --

QUESTION: Does she acknowledge that, before you go on?

MR. WARREN: Yes. She does.

QUESTION: Does she acknowledge that you have to consider the effect of particulates in our ozone in reducing ultraviolet rays, for example?

MR. WARREN: Well, let's put it this way. She didn't sake cert on that issue, so I think she, she has acquiesced in that point.

QUESTION: Well, then if that's so, maybe that ends it because why isn't it a perfectly good, public health must mean basically public health. Not the cost of obtaining public health. Basically. I mean just saying basically in the ordinary case, and then, of course, you could have some unusual cases where in fact what people like to say is we are going to go back to the stone age, which was very unhealthy for people, so, that if in fact the administrator has the authority, not necessarily the requirement, to take into account the health effects of either the, you know, we've seen the skin cancer referred to a lot in the briefs, and I guess if you really destroyed the economy, that would have adverse health effects. I don't know you're -- I don't know if the other side agrees on that.

But if I'm thinking that the administrator has the authority, not the requirement, in unusual cases in a technology-forcing statute to take into account the possibility that despite the technology forcing, etcetera, you could hurt the public health, because we are going back to the stone age. I mean, if that kind of reading of the statute, does that satisfy you?

QUESTION: No.

MR. WARREN: No. Why isn't it, however, a correct reading, which isn't quite what they proposed, but --

MR. WARREN: Well, first of all, they've not conceded the point that you're making but let me address it in terms of public health. I call the Court's attention to footnote 1 of our blue brief that I was referring to again, because public health, as I think everybody knows today, is a discipline which examines health questions in terms of protecting the public with explicit reliance on cost/benefit considerations. I mean, this is the way you achieve the most for the public, and that is by taking cost/benefit considerations into account.

QUESTION: But the provision you just, you just quoted to us at the beginning of your presentation here, which says that the committee has to advise the administrator of any adverse public health, welfare, social, economic, or energy effects, which may result from various strategies. But you know, they take the pain to separate public health from economic.

MR. WARREN: But, but I think my answer to you, Justice Scalia, is the same here as it was with respect to Section 312. Those, those things that are mentioned there obviously overlap. I mean, they infect each other in both directions and it's so true, so is true of public health. Let me say that I didn't make up this definition of public health. Public health was defined most prominently by the head of the public health school at Yale, and his definition is the one you really see in all the dictionaries.

QUESTION: What about the definition the Congress gave? It didn't give any?

MR. WARREN: It didn't give any. That's significant. And why did Congress --

QUESTION: And you think this was relying on this prestigious person at Yale, and not on the EPA?

MR. WARREN: No what I really think it was relying on was the implicit definition of public health in the Act before 1970. Let me focus in on exactly what happened again because I think it's very significant. The Senate came up with a bill that would set national standards to protect the health of persons. Now, that expression had a meaning in the previous Act. It was the trigger for abatement actions. But abatement actions, the trigger was only the beginning. You then weighed against the -- what's necessary to protect the public, to protect the health of persons. You weighed against that equitable factors, and economic factors and the like.

The House, by contrast, used the term, we're going to set standards requisite to protect the public health. That term had a meaning in the statute as well. From 1955 on, Congress used the word public health. It enlisted the public health service, which engages in exactly the kind of comparisons I'm talking about to help administer the statute and public health was the goal to be achieved when you weighed the health of persons against these other factors. That's implicit also in the purpose of the statute. I see -- I use the purpose to reinforce what public health means, not in any other, in any other way, but it does very much reinforce it. It's really what Justice Breyer was saying. Is healthy people are wealthier, wealthy people are healthier. There is always going to be an interaction between these things.

QUESTION: I'm not sure I was saying that, but they --

MR. WARREN: It's close. It's close to what you said.

QUESTION: I mean, what I don't see to be direct about it is how you import a cost/benefit analysis into this statute. I mean, cost/benefit analysis is a formal discipline. It's very complicated. It's very time-consuming, and if you were going to have that formal discipline in this statute, why would they just use the words public health?

MR. WARREN: Justice Breyer, I'm glad you framed the question that way. We are not talking about econometrics. We're not talking about -- we're talking about what Ben Franklin called prudential algebra. Put one side of the column pros. One side of the column cons. We are looking at an analysis just like you see in the presidential executive order of this administration, or that which you see in the Unfunded Mandate Act. What we're talking about is a common sense weighing of competing considerations in a systematic way. That's all we're talking about. The executive order, as I'm sure you know --

QUESTION: One difficulty, I guess would be you could put in certainly, I imagine, the economic considerations if perhaps -- if they're related to health considerations, I can see how a person might do that where small risks are involved. I could understand that. How to do it. What I don't really see is how you do that if the statute is technology-forcing. I mean, because you wouldn't know really what the costs are that are being foreseen with the technology that doesn't yet exist. It would be pretty hard to write that.

MR. WARREN: Once again, with all due respect, we have a very detailed regulatory impact analysis here which does -- EPA knows a lot about the costs of controlling these two pollutants because it's been controlling them for 30 years, so it knows how much it's going to cost to go that extra step and that extra step, and there is an evaluation of those costs in the regulatory impact analysis, so I don't think it's hard to get a handle on those costs. I'm not saying that any answer on the costs or the benefits is precise. The agency has a lot of discretion on that, but not to try, I think is ultimately going to defeat public health. It's going to defeat the objectives of trying to achieve more good for the public, and that's what this statute's all about.

QUESTION: Mr. Warren, may I ask with respect to this add some kind of cost/benefit analysis, what kind we don't know. You just mentioned Benjamin Franklin as one source of this. It seems to me, to put it bluntly, that you would have on your scheme as a target for attack not only the public health as it has been conceived as something discrete from cost/benefit analysis, but what kind of cost/benefit analysis this should be. Did EPA weigh the right factors. It just seems to me that you are adding something that will create another morass, many more things that can be attacked than under the lead industry's regime.

MR. WARREN: Not at all, Justice Ginsburg. Not at all. What we are saying is that what the agency can't do in the name of public health is take countervailing factors off the table. But in carrying out its responsibilities to achieve the public health, those factors are weighed on the pros and the cons, just as Ben Franklin was talking about, and we have a process which is -- which it can be subjected to executive branch review, which is going to cut out a lot of the problems, to congressional review. It facilitates what Congress had in mind. Now, let me also go forward and say that this is --

QUESTION: If I knew what the "it" was. I mean, you said this is not fancy cost/benefit analysis. It's something -- well, what is it exactly?

MR. WARREN: What it is, is what every other health, safety and environmental agency does. We don't have an executive order reviewing these decisions of EPA and OSHA, and NHTSA, and so forth, because every statute has been interpreted by a Court of Appeals the way this one has. The norm is to do the kind of weighing and balancing I'm talking about. Now, that's not to say that if a regulation passes executive branch review and gets by congressional oversight, that there won't be judicial review, but the agency is going to have a lot of discretion with respect to the weight of the evidence questions, questions about which costs can be quantified, which costs can't be quantified, how to quantify them, how to quantify the benefits. All those questions are questions which would come up in the -- in any subsequent review or could come up in any subsequent review, but the Agency's discretion is going to be honored.

QUESTION: Mr. Warren, I must say that to the extent you win this argument that you're making now, you sort of weaken your argument on, concerning the ability of EPA to issue revised ozone standards, because frankly, what makes it eminently plausible that Congress might have itself set a fixed table that can't be changed by EPA is the scary idea that if EPA can issue revised standards, God knows what it might issue. It doesn't have to take into account anything but public health, and you know, it could go down to transient costs, and if that's what the scheme is, I can understand why Congress would say in Part II, no, look it, with ozone, it affects everything, it affects every industry. We are going to, we are going to import ourselves some cost/benefit analysis and we are going to set this table, and EPA can't change it.

Now, if you tell me that when EPA changes it, EPA also has to take into account whether it's going to bring us back to the stone age, then -- then it's a little less plausible that Congress should have, should have stepped in.

MR. WARREN: I think there's a common theme between these two portions of the argument. On the first part that I'm arguing, I will give it to EPA that it's constrained by lead industry and this line of cases from doing what I think is required by the statute to do, but nonetheless it hasn't fought very hard to accomplish the aims that I'm talking about. So when Congress gives it general direction, it doesn't seem to want to follow it. And then when Congress gives it very specific direction, it doesn't want to follow it either, so that's what I think -- that's the common theme here I think of an agency that wants to do what it wants to do, and not what Congress directed it to do. I think that that's, that's the common --

QUESTION: Does the agency have the authority -- you were saying what discretion they have. They have wide discretion after they do this common-sense balancing of whatever things. That was your view, right? Do they also have the discretion not to do it?

MR. WARREN: Not to do it. No.

QUESTION: Not to take any of these things into account.

MR. WARREN: No. And that's exactly --

QUESTION: Well, supposing that the EPA administrator thinks, you know, it's going to be a three-week hearing just to begin, and by the time I get finished reading all that stuff on the costs, etcetera, it's going to be another year and I'll never get this job done and I doubt that it has much to do with the outcome. Is the EPA administrator then have the authority to say I don't want to do it, I don't want to get into this?

MR. WARREN: No.

QUESTION: No.

MR. WARREN: Because the agency, what the agency doesn't have discretion to do, it's got a lot of discretion, and I have emphasized that these decisions are going to be reviewed, you know, under the scheme I'm talking about under the arbitrary and capricious test, but the one thing it doesn't have discretion to do is to take all those countervailing factors off the table because what that is doing, and this feeds right back into the delegation doctrine where they say they have to make no findings and so forth, as I alluded to, what that means is that the agency has the freedom to take us all the way down to deindustrialization, as the Court of Appeals said. That can't be. This Court's decisions at MCI, Benzene I think stands for the same proposition. There has to be some common sense brought to bear. There has to be some determination of what risks are acceptable, what risks are not.

QUESTION: No problem. I mean, if EPA goes too far, it looks like things are going too far, Congress will step in and enact Part II with a fixed Table 1 that EPA can't depart from.

MR. WARREN: We don't need to -- we don't need -- the problem that I'm talking about, whether the standards make sense in terms of public health, whether they really help public health is not something Congress has ever, ever, ever addressed through oversight. Never addressed that. All it's done is extended some deadlines. It's a completely different question because the question, and we're in the last mile. I want to emphasize that.

This is not 1970. This is 2000. And we've been regulating these pollutants for years. We've done lots and lots of things, and this issue of whether or not it's worth the candle in terms of public health is coming sharply into focus. It's come sharp -- much more sharply into focus as a result of things like the executive orders that have, have been in place for the last 20 years. It's come more sharply into focus because of the Unfunded Mandate Act. That's where we are today.

But this is something that Congress has never addressed, and can't fix. Or can't fix without rewriting the statute, which it doesn't need to do because for the reasons I've talked about, Congress had it right in the first place. It didn't pass the Senate bill to protect the health of persons. It passed the House bill, which said protect public health, and public health had meaning, just as I'm outlining it here today, and that meaning, and I talked about this definition, but the name of that book is the -- it's either the "Cost of Sickness and the Price of Health" or the other way around. I always get it confused. But the point is is that in this century, the leaders of the public health tradition have been looking at these things, and for good reasons. You know, you don't spend money foolishly and unwisely to achieve a pittance when you can use your money much more wisely and better to achieve more.

QUESTION: Can you in one sentence tell me what standard it is you would say public health incorporates?

MR. WARREN: Yes. Public health means --

QUESTION: Because, I've listened to a lot of vague language.

MR. WARREN: Yes.

QUESTION: From you. And I don't understand what it is that you are saying.

MR. WARREN: Well, okay. Let me try this for you. Public health contemplates a consideration of competing factors, including costs, in seeking to reduce population sickness and increase longevity. I think that says it in a sentence, what I think I have borne out by that definition of public health. When this act was passed, and today.

QUESTION: Do you think that standard were to comply with the delegation doctrine?

MR. WARREN: I do. I do think it would comply with the delegation doctrine, and it's really, as I was saying to Justice Breyer, when you have countervailing factors, it's not adding factors, factors, factors, it is the fact that the factors countervail. It's one against the other. That narrows discretion and I gave the just and reasonable rates as an example, and I think if we had the analogous situation before us of a Court of Appeals that said in setting just and reasonable rates we're only going to look at the consumer interest, the logic would take us --

QUESTION: Tell us, though, what it is in that sentence of yours that makes it meet the nondelegation standards, whereas the present provision does not, as interpreted by CASAC?

MR. WARREN: As interpreted. Because the difference between what I read and let me read it again. Public health contemplates consideration of competing factors, including costs, in seeking to reduce population sickness and increase longevity. What the lead industry's case does is it takes all of the first part of that sentence off the table. It says you cannot consider those things. And I don't frankly know how in a world of limited resources, whether it's air pollution or whether it's managed care, how we can make these decisions if we don't think about what risks are acceptable.

QUESTION: But we've been living with lead industries for 20 years, I gather. It was decided in 1980, wasn't it?

MR. WARREN: Yes, it was. And two things on that. One, there is no stare decisus effect.

QUESTION: No. But you say you don't know how we can live with this kind of a regime. Well, we have lived with it for 20 years.

MR. WARREN: Well, I think that, that we -- there's several things you can say about that. I think we have not addressed the sort of last mile problems that we have here today. I think when you say that we have lived with it, that does --

QUESTION: You say the last mile. That has a number of connotations.

MR. WARREN: Right.

QUESTION: What precisely are you talking about?

MR. WARREN: Well, what I mean, what I mean, Your Honor, okay, too much shorthand, but what I mean is that both ozone and particulate matter have been regulated very extensively for a number of years and take automobile emissions, for example, what we have done is we've, we're now, we are in the last 1 percent of control. So the costs and the benefits, and the same could be true of utility scrubbers or a number of other things because we've done this kind of regulation, but let me say that --

QUESTION: Well, when you get down to that, at the last 1 percent or whatever, it is you're going to get into an area of fuzzy science. You're going to find health effects on both sides as you're finding in this case apparently, and so therefore, if that's what you are worried about, you don't need your -- you don't need more than the health balance, and if you are not talking about that, lead industry seems to have worked.

MR. WARREN: Well, first of all, I think the health-health balance really won't work, taking particulate matter because I think you have the same problems. It's just another form of a zero risk standard. What you are doing is you are netting out any countervailing considerations, but there's really no place to stop until you have gone all the way down to zero for pollutants like this which are nonthreshold pollutants. Let me continue. Lead industries, as I indicated, I don't think on the facts was wrongly decided. That was really --

QUESTION: Let me just interrupt you on that very one. You said it has no stare decisus effect. Of course, we have the authority to reject the case, and we're not bound by it.

MR. WARREN: Right.

QUESTION: But doesn't it have stare decisus effect if the doctrine really has meaning in terms of the community and the agency and everything have relied on it for 20 years in planning their courses of action. Isn't that what the heart of stare decisus is.

MR. WARREN: Right, but let me -- I take the Central Bank of Denver case as probably the best one to talk about because this Court held no stare decisus effect and overturned a decision where 11 courts of appeals had come out the other way, and everybody had been living with aider and abettor liability under 10(b)(5) of the '34 Securities Act for decades, and yet this court said that's not what the statute said, so this Court is in a position to read the statute and make sense of the statute, as I am suggesting.

Now, I don't think lead industries really has worked. That's not to say, and I'm not saying, although I don't know that the existing standards have benefits that exceed the costs. I have a pretty good sense then in the first decade of the statute, there wasn't much question about that, that one of the reasons this thing didn't come sharply into focus in lead industries is because we were at the early stages and it made a lot of sense to do what was being done.

But at this stage, I don't think health-health tradeoffs really are the answer because for the very reason you're suggesting, the costs are important because the resources, and even in a rich society like this one, we do have limited resources and those resources can be better used elsewhere. I mean, there is no even attempt to reconcile the ozone standard in the particulate matter and the other ambient standards in terms of providing a comparable degree of protection, even without any regard to costs. For example, taking the Benzene case as an example, where you know, you had occupational carcinogens and could you look at the risks and could you at least make some comparison, you note none of that is even attempted in this case.

QUESTION: I don't see why that makes for a make or break argument on the point of delegation, because there are health-health tradeoffs so that there are ways of drawing reasonable lines within the limited concepts of health, pro-health, anti-health. If you introduce the economic factors at this stage of the analysis, what you will have done is to create a, or recognize, a new set of reasons, but it doesn't follow from that that for purposes of the delegation doctrine, it is impossible to draw a line short of zero which is not arbitrary if you don't consider the economics so that you complicate the analysis. You may complicate the analysis in what is, a perfectly desirable way, but I don't see that it either makes or breaks the constitutionality of the statute under the delegation doctrine.

MR. WARREN: But, the first point is, you got to construe the statute. And I think the statute has to be construed against the backdrop of the MCI Benzene --

QUESTION: Right. We may or may not --

MR. WARREN: Okay.

QUESTION: -- agree on that. But your, your other argument was that if you don't, I thought it was --

MR. WARREN: Right.

QUESTION: -- that if you don't import the economic consideration at this stage, there is no logical stopping place by which I think you mean there is no way to draw a line which is not inherently arbitrary or capricious. And it seems to me that that is not a sound argument because even if you confine your countervailing considerations to health versus health, you will have kinds of reasons which would count as reasonable bases for drawing lines short of zero.

MR. WARREN: But Justice Souter, you are presupposing by the question I think that everything is like ozone. Let's just take particulate matter and let's assume for a minute that there is no countervailing factors that there's risks all the way down to zero. You had the same indeterminancy problem. Let's take ozone, where there are going to be countervailing factors to some degree, but where you still have the same problem, where you are going -- are you really protecting public health if you push it down to a level where the costs greatly exceed the benefits. That's really what the regulatory impact analysis says here. Let me make one more point. Maybe I should reserve the balance. I know I'm --

QUESTION: Very well, Mr. Warren. General Waxman, we'll hear from you.

ORAL ARGUMENT OF SETH P. WAXMAN ON BEHALF OF THE RESPONDENTS

GENERAL WAXMAN: Mr. Chief Justice and may it please the court. For 30 years, the EPA has consistently interpreted the Clean Air Act to require that NAAQS be set solely by reference to the effects of a pollutant's presence in the air. Costs and other factors relating to removing the pollutant are accounted for under the statute in the process of implementing the standards. That interpretation reflects the plain meaning of the statute and the intent uniformly expressed both by the D.C. Circuit and the legislative history of this technology-forcing act.

QUESTION: Mr. Waxman, do you concede that EPA can consider countervailing health concerns, for example, the skin cancer problem?

GENERAL WAXMAN: The EPA -- we concede that the EPA can consider countervailing health concerns that derive from the presence of the pollutant in the air, for example, the health, the health cancer problem, but we do not concede, and the Court of Appeals has unanimously upheld our determination that we cannot consider any factors, economic or health, that don't derive from the presence of the pollutant in the ambient air because that's what Section 108(a)(2) requires.

QUESTION: But that is a little ambiguous, the presence of a certain degree of ozone in the air, according to DOT, is necessary to prevent melanoma.

GENERAL WAXMAN: Yes.

QUESTION: And if you took it out, then there would be more melanoma, and you count that?

GENERAL WAXMAN: We can --

QUESTION: On the same theory, I guess you would have to say the stone age problem being that the presence of a certain amount of ozone is the air is necessary to prevent the kind of economic activity that would be associated with the stone age, and that health problem.

GENERAL WAXMAN: No. We don't concede that.

QUESTION: I know you don't in your brief and I don't really see the difference.

GENERAL WAXMAN: Here's the difference.

QUESTION: And I'm not sure it's important, it might be.

GENERAL WAXMAN: I'm not sure it's important either, but if it might be, I'll address it. The UVB question, that is the question about whether, well, this tropospheric ozone might be even at elevated levels that cause people to die might be protecting against skin cancer was a case of first impression for the EPA in this case. It had never, there had never been such a claim made for any of the other six criteria pollutants in any of the five-year reviews. The EPA's initial determination, which it defended in the Court of Appeals, was that it was not appropriate to consider that, but the Court of Appeals held otherwise, we have acquiesced and the EPA is in fact very well along in the process of evaluating and characterizing those countervailing health effects that derive from the presence of the pollutant in the air.

QUESTION: General Waxman, if we're permitted to ask unimportant questions, can I ask what eight hours we are talking about, in the eight hour standard? Which eight hours of the day is it.

GENERAL WAXMAN: It's -- you're referring to the --

QUESTION: Ozone.

GENERAL WAXMAN: -- standard that is set for ozone.

QUESTION: Yes.

GENERAL WAXMAN: And I don't think that the standard --

QUESTION: Because eight hours is more reliable than one hour, but I'm wondering if, I just don't find, you tell me, which eight hours is it? Is it from midnight to 8 a.m., because --

GENERAL WAXMAN: I believe it is --

QUESTION: Because it would vary, I think, tremendously.

GENERAL WAXMAN: I am certain that in either the criteria documents, the staff papers, the CASAC concurrence letters or the preamble, it specifies that in detail, but I'm afraid that I can't tell you the answer. When CASAC -- CASAC concurred unanimously that an eight-hour measuring period should be substituted for the one-hour period.

QUESTION: I had assumed that it meant you couldn't go over those levels during eight-hour period in the day.

GENERAL WAXMAN: I believe that's right, but I am not a -- I'm not even in the realm of being a scientist, and I -- I would want to be more certain before I set it, but it's not, it's not just --

QUESTION: Just a matter of averaging it over the eight hours rather than averaging it for one hour.

GENERAL WAXMAN: It is in fact the three-year average of the annual fourth highest daily eight-hour average, if that's clear.

QUESTION: General, can we go back -- General, can we go back to your answer from which we're sort of departing. You were at the point of saying -- you had said, that economics can be considered at the implementation stage.

GENERAL WAXMAN: Yes.

QUESTION: Can economics be considered at that stage for any purpose other than deciding what period of time will be allowed for complete implementation?

GENERAL WAXMAN: Yes. Both by the agency --

QUESTION: Explain how that works.

GENERAL WAXMAN: Okay first of all, costs are -- the statute requires the EPA to do a risk assessment analysis which was referred to earlier, and that be provided to the states and Congress, and Congress routinely reviews this to determine whether to adjust the enforcement burdens that the statute applies.

QUESTION: Can EPA itself make such a decision?

GENERAL WAXMAN: Yes, it can, in the following respects. First, if a state fails to create a SIP, a state implementation plan, EPA must do it and in doing its own implementation plan for one of the 3,000 areas in the country, it must reference all of that data, as if it were a state. Secondly --

QUESTION: Okay.

GENERAL WAXMAN: I have a whole list.

QUESTION: Go ahead. Go ahead.

GENERAL WAXMAN: Which I hope will answer your question. Leaving aside question of postponement of the dates and extensions of time, the EPA must use that data to determine what control technique guidelines will be imposed with respect to ozone in particular. It must use that data in determining what requirements to place on light duty truck emissions. It also must use that data to set performance standards for new stationary sources of air pollution and for new motor vehicles. The theme here is, as I said before, we have in essence a two-part statute. Part one is set the standard. And part two is implementation, which also imposes lots of regulatory obligations on EPA itself.

QUESTION: Can EPA ever make this decision? Over any conceivable period of time. It simply will be economically undesirable to exact the cost of meeting this standard, therefore, we will not require this standard to be met. We will require, say, nothing more than compliance with this standard discounted by 40 percent.

GENERAL WAXMAN: No.

QUESTION: Can it make that judgment?

GENERAL WAXMAN: It may not make that judgment, and the reason is, as you suggested in I believe in an earlier question that that judgment was specifically and expressly left to Congress. The Senate report which accompanied promulgation of the 1970 act, at pages 2 and 3 and 10 expressly reflect Congress' judgment that that determination is to be left for Congress upon reviewing a technology-forcing statute in which costs will not be considered.

QUESTION: I wanted to know whether I got it right, but you are telling me --

GENERAL WAXMAN: Yes.

QUESTION: You are telling me that yes --

GENERAL WAXMAN: Yes. They cannot -- EPA can --

QUESTION: I wasn't aware, I wasn't aware that they could extend the time beyond, beyond what Congress has prescribed.

GENERAL WAXMAN: They can't. Congress has provided, for example, with respect to attainment of the standard under a state implementation program that attainment must be achieved within five years, but EPA can extend it for another five years and then give two additional one-year extensions, all by referencing questions of costs, feasibility, etc. The EPA -- I want to address the legislative history in a moment because the history both before and after the 1970 acts is very revealing here.

QUESTION: Is the -- is the congressional scheme for Congress to revisit this if it chooses, is that necessary to save this from unlawful delegation?

GENERAL WAXMAN: No. I don't think so at all. The first thing that Congress did after it passed the '70 act was to provide in 1977 that the standards should be reviewed and revised every five years. Now, that is a provision that is codified in Section 109(d). It's a new provision, and it's significant because what it says is that the revisions shall be made in the same manner as the original standards are set, by reference to the criteria documents and Section 109(b).

Now, I think that one of the things one can glean, one of the many things one can glean from the legislative history, is that when Congress did that in 1977, it knew repeatedly without any doubt and from a commission that it itself asked to look at this question, that the EPA was setting the standards without reference to costs or other implementation factors, and yet, it required the EPA to revise the standards every five years and expressly said that they are to do so in the same manner as which the original standards are set. There was, in particular, a 1970 Congressional Research Service Report, 1975, Congressional Research Service Report that was asked to look at this question, and outlined the debate over whether to retain the effects of the pollutants as the sole criteria of standard setting, and Congress did that in 1977.

But it went further, Justice Kennedy. It also directed that another commission, an independent commission, be established to look at this question, and that commission reported to Congress in 1981, and it said, "the current statutory criteria and requirements for setting air quality standards at the levels necessary to protect public health without considering economic factors should remain unchanged." And when Congress revised the statute in 1990, that's exactly what it did. And both the House and the Senate reports accompanying the 1990 legislation said that primary NAAQS are "set at a level that protects the public health with an adequate margin of safety without regard to the economic or technical feasibility of attainment.

This Court itself said in the Union Electric case, construing the Clean Air Act, and I'm quoting, "when Congress intended the administrator to be concerned about economic or technological feasibility, it has expressly so provided." And in the Benzene case, which my opponent has cited but which I think strongly supports us, the Court said, and I am quoting, "when Congress has intended that an agency engage in cost/benefit analysis, it has clearly indicated such intent on the face of the statute."

Now there, this Court determined that before OSHA could lower the level for a particular toxic material or hazard physical agent below an existing standard, it had to determine that there was a significant risk to safety. And that determination was to be made without reference to cost/benefit analysis, and if I can just say one thing with respect to the previous argument, that standard, significant risk to safety, has no more countervailing extraneous factors imported into it than the public health adequate margin of safety requisite standard that exists here. In fact, this Court went on at length to say that it doesn't require mathematical precision and there will be a range of factors and that judgment has to be rendered and that the court will simply have to review whether the decision is arbitrary or capricious.

QUESTION: So what happens if it turns out because of science that the internal combustion engine does always affect somebody and so that having cars will have some adverse health effects, but what is the EPA supposed to do?

GENERAL WAXMAN: Well, the EPA reasonably interprets the Clean Air Act as not either requiring or permitting it to set levels that are at or below background levels, and it has never yet, I mean, you know, science inexorably creeps forward, but the EPA has never set, found a level necessary, for example, to eliminate the internal combustion engine. In fact, with respect to ozone, the first time the EPA changed the standard, it changed the standard from a .08 one-hour standard, which is much stricter than what we have here, to a .12 one-hour standard. That is, it relaxed it and of course, it was, this goes to Justice Scalia's question from a while ago, it relaxed it and of course the American Lung Association and others came running in and saying that's ridiculous. You know, how can you be relaxing the standard? Health effects could occur. And you know I commend the D.C. Circuit's opinion, in, it's called American Petroleum Institute vs. Kostill for an analysis of why there are, in fact, countervailing factors that would permit an administrator exercising judgment within the zone of reasonableness to raise the standard.

Now, I want to say something about your, your earlier question about what if the costs were so astronomical to require us to deindustrialize, although deindustrialization would be quite unhealthy, and was quite unhealthy. I want to say two things. First of all, Congress has made a rational decision that with respect to what it viewed and characterized as the most serious problem facing America in 1970, which was air pollution, that it wanted to create an agency, an expert agency that would rely on science and the latest scientific knowledge to do as step one, just tell us. We recognize this is going to be hard. We recognize that some of these chemicals are "nonthreshold," but tell us, based on your best judgment what level would be safe to set for the whole country. And then, establishes a program for how to achieve the levels by balancing the burdens between cars and stationary sources of pollution.

But secondly, the EPA was -- the EPA has always done cost estimates at the time that it promulgates the criteria documents so that the states can use them in implementing. And retrospective -- looking retrospectively, every single one of those cost estimates has vastly overstated the actual cost/benefit analysis of what it took to meet that level.

QUESTION: What is there, though -- what is there, though, that would suggest that EPA could not decide that with electric motor vehicles we could achieve a better standard and it would be better for health and therefore, we are going to set a much lower standard?

GENERAL WAXMAN: Well, Justice O'Connor, the reason is that when it sets the standard, it is -- and this is, I'm making reference to the language of Sections 108 and 109 of the act, which are reprinted at pages 109-A through 112-A of the appendix to our petition. They're in several other places.

The standards must be set, it says this in 109, based on the criteria. And in 108(a)(2), it says that the criteria shall accurately reflect the latest scientific knowledge useful in indicating the kind and extent of all identifiable effects on public health or welfare which may be expected from the presence of such pollutant in the ambient air, so that does not look at --

QUESTION: You left out three words.

GENERAL WAXMAN: -- so that does not look at -- it does -- when it sets the standard, should it be .08 or .09 or 3.5, when it sets the standard, it does not look at, are there electric cars or not electric cars or are there scrubbers for SO2 emissions or not? It sets the standard at what is requisite to protect public health from the effects of that ubiquitous pollutant, but once those standards are set, it is then up to the states and EPA to determine one, what areas within our jurisdictions don't meet those general standards, and then --

QUESTION: I understand. That's what have you been saying all along, but a few minutes ago, you seemed to be trying to reassure that well, I mean, EPA understands we have automobiles and they're not going to set something that means there's no more automobile use in the country. And yet, what you have just said again would indicate that's not a consideration in setting the standards.

GENERAL WAXMAN: It's not a consideration in setting the standards, and the point that I wanted to make. I didn't successfully make it. Is that time and again with respect to each one of these standards, there have been complaints that this would require 10 horrible things. With respect to the original standards, which then authorize the EPA to set tailpipe emissions for new cars. This is discussed extensively in some of the amicus briefs. The automobile industry stated publicly that it was impossible to meet those standards, and if it were possible, the companies would go bankrupt. As it turns out, the standard -- the companies did develop the technology. They met the standards well ahead of the schedule that EPA and Congress had revised and as a result with respect to all six of the criteria pollutants, the health in this country is vastly better now than it was in 1970, even though we have a much bigger population and we have a much greater level of industrialization.

QUESTION: But it would probably be even better if we set it at zero.

GENERAL WAXMAN: Well, I don't think -- well, this is a --

QUESTION: I would have thought the health would be a lot better if we just said no pollutants.

GENERAL WAXMAN: Well, Justice O'Connor, that would be a question for Congress because everybody understands and Congress has said that it does not expect or allow the EPA to regulate to zero biological risk. It regulates to a --

QUESTION: The statute doesn't say that, does it?

GENERAL WAXMAN: It does. It does. With respect. It says that standards must be set at levels that are requisite, that is necessary, but not more than necessary to protect against, not all effects, but public health effects arising from the presence of the pollutant in the air, which the agency and the courts, supported by the legislative history, interpret as meaning effects that are of medical significance that affect a sufficiently significant proportion of the population that the administrator in her judgment can conclude reasonably that it constitutes a public health effect. Now --

QUESTION: Are you saying -- I think you're saying you'd never get to zero because there is no reason to believe that you would have to get to zero to end what are understood to be treatable diseases or treatable effects?

GENERAL WAXMAN: That is correct.

QUESTION: It's treatability -- is the effect the criterion, isn't it, then?

GENERAL WAXMAN: Treatability is a -- is one of the factors that goes -- that builds into the accepted medical profession's definition of what constitutes an adverse health effect. But it would also -- may I just finish the answer? It would also never be required because the EPA, the statute, this is not a statute that requires or permits the EPA to take our society to zero, to take our society below what otherwise occurs in the air without all of this man-made pollution-inducing activity.

QUESTION: I'm sorry. The reason that I ask, it says the presence of such pollution in the ambient air in varying quantities. In varying quantities. So I thought, given that word, that there is no effect that the EPA administrator can't take into account if that effect is a public health effect, and is different at different quantities.

GENERAL WAXMAN: That is correct. She is --

QUESTION: All right. If that is correct, then mightn't it be factually true, I mean, that if you were going to electric cars, or you're really going to change the whole economy, the chances of the costs being so fantastic that they have serious adverse health effects are fairly high, and the saving might be fairly low in terms of health. Maybe that isn't so.

GENERAL WAXMAN: I don't know whether or not it's possible or not, Justice Breyer, but I will say this. In 30 years under this act, and this act is -- this act is the premiere example of the point that Justice Kennedy was expressing for the Court in Loving of cooperation between two different branches under the separation, under the permissible separation of powers to achieve a result. Congress has over and over and over again adjusted implementation issues in response to problems of cost and feasibility, but never, it has never done either of the following two things. It has never changed a NAAQS. Never said no, that's too low, we'll have to deindustrialize, and it has never changed the factors that EPA considers and doesn't consider in setting NAAQS.

QUESTION: Have there been, have there been other cases in other regulatory statutes where the government has argued that it survives a delegation challenge because there is a cost/benefit analysis -- i.e. have you taken a position, in other cases, in other agencies, cases where cost/benefit is a way to save the statute from the delegation session.

GENERAL WAXMAN: Not that I'm aware of, although in some of the rate-making cases, I think it was probably apparent from the context. I mean, my colleague cites Hope Natural Gas, which was not a nondelegation case, but it was apparent from the context. But I think the interesting point, Justice Kennedy, is that this Court has decided many cases in which it is clear that it was neither necessary nor important. Benzene is the best possible example of that. But it is also true in other cases. I mean, if one can go all the way back to --

QUESTION: Excuse me. What was neither necessary, nor important?

GENERAL WAXMAN: A cost/benefit analysis in determining in either making the statute constitutional under the nondelegation doctrine, or providing a sufficient principle for determining what is a significant safety risk. But the other case that just comes to mind is, in many ways -- the first nondelegation case of the last century, the Stranahan case, Buttfield vs. Stranahan in which Congress passed a law that told the Secretary of the Treasury for some reason to set uniform rates for the quality of tea and to prohibit the importation of any tea that did not meet those standards. Now, there's no indication in the record in the case that cost/benefit analysis went into the determination of what an appropriate standard for tea quality was, and it's frankly hard to imagine how it would have been done so.

In my few remaining minutes, I would like to address my comments to the argument that somehow the words public health requires this Court, notwithstanding 20 years of D.C. Circuit precedent to the contrary, to require some form of cost/benefit analysis. And I have five points to make with respect to that in my remaining time.

First of all, the legislative history, the 1970 legislative history reflects that Congress intended the plain meaning of public health to mean to protect populations, not the most sensitive person as is the case in the OSHA Benzene context.

Number two, if you look at Section 108(a) of the act, which determines what criteria are, it is the effects on public health of the presence of the pollutant in the air that is being ascertained and costs does not make sense in that context. There are also, as Justice Scalia pointed out, many provisions of the Clean Air Act that require consideration of both costs and public health, and they are collected in the brief of Massachusetts and New Jersey at page 29.

Well -- penultimately, the Winslow definition, the 1951 definition that ATA cites is a definition of the profession of public health, the discipline of public health. There is no showing in this record or in the legislative history that that case, that that definition was ever even cited in -- by 1970, much less brought to the attention of Congress. And there is no showing whatsoever in the legislative history that that definition was interpreted that way before 1970. I mean, it would require Section 109(b) to say that NAAQS must be set at the level requisite to protect the profession of public health with an adequate margin of safety. And in fact, there is a reference to the fact that all public health organizations agree can you only determine this with respect to costs, at page 36, footnote 27 of our principle brief on this appeal, we reference and describe the expressed views of the American Public Health Association which is the national umbrella organization for public health professionals, which specifically has endorsed the process that EPA uses for setting the NAAQS standard. In short, there is nothing in Section 108 or 109 that permits EPA to set a level inadequate to protect the public health because of the costs of compliance. If there are no further questions.

QUESTION: Thank you, General Waxman. Mr. Warren, have you one minute remaining.

MR. WARREN: Your Honors, the cotton dust case, which did construe Section 38, said that cost/benefit analysis either permitted or required by section 38 of that statute, it was ruled out only because the statute provided a feasibility analysis. That's the only thing that ruled it out. The examples that Mr. Waxman, or General Waxman gave are all feasibility examples. He concedes that the standard itself cannot be changed after it is set, and lastly, we have acted as if this provision has made sense in the D.C. Circuit. I call the Court's attention to the American Lung Association case, which shows that this interpretation of the statute makes no sense from any perspective. That was a case where the agency refused to regulate sulfur oxides.

Lastly, I would call to the Court's attention the State of Michigan state as an example where there was --

CHIEF JUSTICE REHNQUIST: Thank you, Mr. Warren. The case is submitted.

(Whereupon, at 12:15 p.m., the case in the above-entitled matter was submitted.)