UNITED STATES COURT OF APPEALS FOR THE D.C. CIRCUIT


AMER TRK ASSN INC

v.

EPA


97-1440b

D.C. Cir. 1999


*	*	*


Opinion for the Court filed Per Curiam:


The Environmental Protection Agency petitions for rehear- ing,
challenging this court's holdings that: (1) with respect to  the
factors the agency uses to determine the degree of public  health
concern associated with different levels of a pollutant,  it "appears
to have articulated no 'intelligible principle' to  channel its
application of these factors; nor is one apparent  from the statute,"
American Trucking Ass'ns v. United  States Environmental Protection
Agency, 175 F.3d 1027,  1034 (D.C. Cir. 1999); (2) "Subpart 2, not
Subpart 1, provides  the classifications and attainment dates for any
areas desig- nated nonattainment under a revised primary ozone NAAQS, 
and the EPA must enforce any revised primary ozone  NAAQS under
Subpart 2," id. at 1050; and (3) "EPA must  consider positive
identifiable effects of a pollutant's presence  in the ambient air in
formulating air quality criteria under  s 108 and NAAQS under s 109,"
id. at 1052. For the  following reasons, we grant the petition for


I. Delegation


In the EPA's petition for rehearing, counsel for the agency  argue that
s 109 of the Clean Air Act contains the following  principle limiting
the agency's discretion: "The levels [set in a  NAAQS] must be
necessary for public health protection:  neither more nor less
stringent than necessary, but 'requi- site.' " EPA Pet. at 8 (emphases
in original). Further,  counsel claim that in setting the NAAQS at
issue in this case  the agency applied corollaries of this principle,
one for partic- ulate matter, one for ozone,1 to derive determinate


In denying the EPA's petition for rehearing on this issue,  we note
that the agency previously put forward neither the  assertedly
intelligible principle its counsel now claim to find in 




__________

n 1 For particulate matter, counsel now state that the EPA's deci- sion
was determined by the norm of "the 95 percent confidence  level to
separate results that could be the product of chance from  more
convincing evidence of causation." EPA Pet. at 15. For  ozone, counsel
now state that EPA inferred the existence of effects  below 0.08 ppm,
but nonetheless concluded that they were "less 


the statute nor the corollaries its counsel now implicitly  derive
therefrom. To be sure, in the rulemakings that set the  NAAQS, the EPA
mentioned the corollary propositions its  counsel now claim served as
intelligible limiting principles,  but the agency did not identify
either as a limit upon its  discretion; the EPA never suggested that
it could not (or in a  later rulemaking would not) base a NAAQS upon
evidence  that did not meet the 95 percent confidence level or that 
revealed adverse but transient effects.2 In its briefs defend- ing the
NAAQS, the EPA merely asserted that the Clean Air  Act provides an
intelligible principle; it failed both to state  that principle and to
argue that its revised NAAQS were  promulgated in accordance with that
principle. EPA PM  Brief at 145-49; EPA Ozone Brief at 77-80. Indeed,
the  EPA's briefs in each of these two cases contained the same  four
sentences assuring the court that the statute provides a  principle
without explaining what the agency understands  that principle to


[Section] 109(b)(1) requires EPA to promulgate NAAQS  based on air
quality criteria issued under s 108 that are  "requisite to protect
the public health" with "an adequate  margin of safety." This language
and related legislative  history provide directions for EPA to follow
in setting  the NAAQS. Moreover, EPA has consistently interpret- ed s
109(b)(1) to provide further decisionmaking criteria  to guide the
standard setting process. Thus, the CAA  provides a more than
sufficient "intelligible principle" to  guide EPA's discretion. EPA
Ozone Brief at 78; see  also EPA PM Brief at 148.


These sentences begged the key question about that intelligi- ble
principle: "What is it?"


As we noted in our first opinion in this case, when "statuto- ry
language and an existing agency interpretation involve an  


__________

n serious because they are 'transient and reversible.' " EPA Pet. at 
16.


2 The court's opinion mentioned EPA's observation in the record  that
effects of ozone concentrations below the standard selected  were
"transient and reversible," 175 F.3d at 1035, but only in  connection
with the dissent's suggestion, see id. at 1059, that this  was the
controlling principle.


unconstitutional delegation of power, but an interpretation  without
the constitutional weakness is or may be available,  our response is
not to strike down the statute but to give the  agency an opportunity
to extract a determinate standard on  its own." 175 F.3d at 1038.
Counsel for the EPA have now  extracted from the statute what they
contend is an intelligible  principle limiting the EPA's discretion.
We express no opin- ion upon the sufficiency of that principle; only
after the EPA  itself has applied it in setting a NAAQS can we say
whether  the principle, in practice, fulfills the purposes of the
nondele- gation doctrine. See Yakus v. United States, 321 U.S. 414, 
424-26 (1944); Amalgamated Meat Cutters v. Connally, 337  F. Supp.
737, 759 (D.D.C. 1971) (Leventhal, J., for three- judge panel).


A final word about our nondelegation holding: The Su- preme Court has
long held that an ambiguous principle in a  statute delegating power
to an agency can gain "meaningful  content from the purpose of the
Act, its factual background  and the statutory context in which [it]
appear[s]." American  Power & Light Co. v. SEC, 329 U.S. 90, 104
(1946); see also  Federal Radio Comm'n v. Nelson Bros. Bond & Mort.
Co.,  289 U.S. 266, 285 (1933) (upholding delegation to Federal  Radio
Commission to grant licenses "as public convenience,  interest or
necessity requires" in light of "its context [and]  the nature of
radio transmission and reception"); Fahey v.  Mallonee, 332 U.S. 245,
250 (1947) (upholding delegation to  the Federal Home Loan Bank Board
to promulgate regula- tions for the appointment of a conservator for
savings and  loan associations in view of the banking industry's
"well- defined practices for the appointment of conservators"). This 
court has done the same. See, e.g., National Ass'n of Broad- casters
v. Copyright Royalty Tribunal, 675 F.2d 367, 376 n.12  (1982) (finding
an intelligible principle to guide the tribunal in  disbursing cable
royalty fees in "specific statements in the  legislative history and
in the general philosophy of the Act  itself"); Amalgamated Meat
Cutters, 337 F. Supp. at 747-49  (interpreting the Economic
Stabilization Act of 1970 in light  of "the historic context of
government stabilization measures"  in order to "negative[ ] a
conclusion that the whole program  was set adrift without a rudder").


sible interpretations of an ambiguous principle, of course, is  to make
a policy decision, and since Chevron it has been clear  that "[t]he
responsibilities for assessing the wisdom of such  policy choices ...
are not judicial ones." Chevron U.S.A. Inc.  v. NRDC, 467 U.S. 837,
866 (1984). Accordingly, just as we  must defer to an agency's
reasonable interpretation of an  ambiguous statutory term, we must
defer to an agency's  reasonable interpretation of a statute
containing only an  ambiguous principle by which to guide its exercise
of delegat- ed authority. But see Kenneth Culp Davis, A New Approach 
to Delegation, 36 U. Chi. L. Rev. 713, 713 (1969) (arguing that 
"judicial inquiries [under the nondelegation doctrine] should  shift
from statutory standards to administrative safeguards").  In sum, the
approach of the Benzene case, in which the  Supreme Court itself
identified an intelligible principle in an  ambiguous statute, has
given way to the approach of Chevron.  See Industrial Union Dep't v.
American Petroleum Inst.  (Benzene), 448 U.S. 607, 642, 646 (1980)
(Stevens, J., plurali- ty) (interpreting s 3(8) of the Occupational
Health and Safety  Act to require "a threshold finding ... that
significant risks  are present," thereby finding in the statute an


II. Subpart 2 and the Revised Ozone Standard


In its petition for rehearing, the EPA challenges the hold- ings in
Parts III.A.2 and III.A.3 of our original opinion, see  175 F.3d at
1048-51, as well as our jurisdiction to reach those  issues. We
address the jurisdictional point first.


A. Jurisdiction


The EPA argues that because it has taken no final action  implementing
the revised NAAQS this court lacks jurisdiction 




__________

n 3 We note that Judge Silberman's dissent from the denial of 
rehearing en banc turns largely on his dim view of the Court's use  of
the non-delegation doctrine in Benzene, which he characterizes as 
"only a makeweight, tossed into the analysis ... to help justify the 
result." Whatever the merits of Judge Silberman's critique of 
Benzene, we do not see how a lower court can properly rest its 
jurisprudence on the rejection of a Supreme Court decision.


to reach the question whether Subpart 2 prevents the agency  from
implementing a revised ozone NAAQS under Subpart 1.  See 42 U.S.C. s
7607(b) (limiting this court's jurisdiction to  review of "nationally
applicable regulations promulgated, or  final agency action taken, by
the Administrator"); see also  Sierra Club v. Thomas, 828 F.2d 783,
792 (D.C. Cir. 1987).4  That this claim is raised for the first time
in a petition for  rehearing does not, of course, alter our obligation
to "satisfy  [our]self ... of [our] own jurisdiction." Steel Co. v.
Citizens  for a Better Environment, 118 S. Ct. 1003, 1012-13 (1998).


Whether agency action is final for purposes of s 7607(b)  entails a
functional, not a formal, inquiry. See NRDC v.  EPA, 22 F.3d 1125,
1132-33 (D.C. Cir. 1994); Ciba-Geigy  Corp. v. EPA, 801 F.2d 430, 436
(D.C. Cir. 1986) ("Once the  agency publicly articulates an
unequivocal position ... and  expects regulated entities to alter
their primary conduct to  conform to that position, the agency has
voluntarily relin- quished the benefit of postponed judicial review").
In this  case, "there is nothing tentative about the EPA's interpreta-
tion of [Subpart 2]; it is unambiguous and devoid of any  suggestion
that it might be subject to subsequent revision."  Her Majesty the
Queen ex rel. Ontario v. EPA, 912 F.2d  1525, 1532 (D.C. Cir. 1990);
see also Final Rule: National  Ambient Air Quality Standards for
Ozone, 62 Fed. Reg.  38,856, 38,885/2 (1997) ("There is no language in
sections 181  or 182 that precludes the implementation of a different 
[ozone] standard under other authority [i.e., Subpart 1];  those
provisions [i.e., Subpart 2] simply govern the implemen- tation of the
1-hour, 0.12 ppm O3 standard"). Moreover, by  promulgating a revised
ozone NAAQS the EPA has triggered  the provisions of ss 107(d)(1) and
172, which impose a num- ber of requirements upon the states, the
first being that the  Governor of each state must determine which
areas do not  presently comply with the revised NAAQS; those areas




__________

n 4 The EPA has yet to designate an area nonattainment. There- fore,
although the agency does not so argue, if it were correct, then  this
court would also lack jurisdiction to decide, as it did, that  Subpart
2 does not alter the agency's power to designate areas as 
nonattainment under a revised NAAQS. See 175 F.3d at 1047-48.


do not comply will ultimately be required to do so. The EPA, 
therefore, has reached a final decision regarding its power to 
implement its revised ozone standard, which this court has 


The EPA also argues that the statements in its preamble  regarding
implementation are not "ripe for review," a point  which it raised in
a single sentence in its original brief to this  court. EPA Pet. at
19; EPA Ozone Brief at 74. The  question whether Subpart 2 prevents
the EPA from desig- nating an area as nonattainment under its revised
ozone  standard or from implementing that designation except in 
conformity with Subpart 2 is a pure question of law, the reso- lution
of which would not benefit from a more concrete  setting. As the
agency's action is undoubtedly final, the  question is fit for review.
See Rio Grande Pipeline Co. v.  FERC, 178 F.3d 533, 540-41 (D.C. Cir.


B. Subpart 2 and the EPA's Authority to Enforce a Revised  Ozone
Standard


The EPA's arguments in its petition for rehearing do not  convince us
that we erred in rejecting the EPA's contention  that "the reference
to s 107(d) in s 181(a)(1) relates only to  designations made under s
107(d)(4)," 175 F.3d at 1050, and 




__________

n 5 The EPA attempts to buttress its jurisdictional argument by 
reference to 42 U.S.C. s 7502(a)(1)(B), which it claims "defers 
challenges to EPA's implementation decisions classifying areas for 
setting attainment dates until EPA takes final action on a SIP ...  or
triggers sanctions ... [after] a state fails to submit a SIP."  EPA
Pet. at 19. The section to which the EPA refers states as  follows:
"The Administrator shall publish a notice in the Federal  Register
announcing each [attainment or nonattainment] classifica- tion....
Such classification ... shall not be subject to judicial  review until
the Administrator takes final action under [the statutes  the EPA
cites in its petition]." That is, the EPA's decision to  classify a
particular area as attainment or nonattainment is not  subject to
review merely because the EPA published that decision  in the Federal
Register. Neither this section nor the analogous  s 7511(a)(3), to
which the EPA also cites, prevents a court from  deciding, prior to
the classification of a particular area, whether the  agency has


in holding instead that "s 181(a) clearly encompasses nonat- tainment
designations made under all subsections of  s 107(d)." Id. Indeed, we
note that the EPA has abandoned  its original position, arguing now
that the "most logical  reading" of s 181(a) is that the reference to
s 107(d) includes  ss 107(d)(1)(C) and 107(d)(4). EPA Pet. at 24. We
find this  new reading no more persuasive than the old. As the EPA 
notes, all five Subparts of the Clean Air Act providing re- quirements
for nonattainment areas begin with a reference to  s 107(d). See 42
U.S.C. ss 7502(a)(1)(A), 7511(a)(1),  7512(a)(1), 7513(a), 7514(a). It
is by no means clear, however,  that the references to s 107(d) in
Subparts 1 and 3 through 5  include only designations made under ss
107(d)(1)(C) and  (d)(4). Not only does the EPA never argue that they
are so  limited, but on its theory the reference to s 107(d) in
Subpart  1 also encompasses designations made under s 107(d)(1)(A). 
EPA Pet. at 25. Accordingly, we reject the EPA's new  interpretation
of s 181(a), for it is contrary to "the normal  rule of statutory
construction that identical words used in  different parts of the same
act are intended to have the same  meaning." Gustafson v. Alloyd Co.,
513 U.S. 561, 570 (1995).


Still, the EPA does raise two points relating to Subpart 2  which lead
us to grant the EPA's petition for rehearing in  part and to make the
following revisions to our opinion.


The EPA correctly points out that we erroneously treated  the
attainment dates in the table in Subpart 2 as representing  the
Congress's judgment about what is "as expeditiously as  practicable"
in reducing the level of ozone in an area; in fact,  those dates
represent what the Congress set as outer limits.  See 42 U.S.C. s
7511(a)(1) ("For each area classified under  this subsection, the
primary standard attainment date for  ozone shall be as expeditiously
as practicable but not later  than the date provided in table 1"). EPA
Pet. at 25 n.35.  Accordingly, we grant the EPA's petition for
rehearing to the  extent of deleting the final three sentences of Part
III.A.3, see  175 F.3d at 1051, and substituting for them the


Therefore, we conclude that Subpart 2 erects no bar to  the EPA's
requiring compliance with a revised secondary  ozone NAAQS "as
expeditiously as practicable."


The EPA also contends that the conclusion to Part III.A.2,  see id. at
1050 ("the EPA must enforce any revised primary  ozone NAAQS under
Subpart 2"), conflicts with our descrip- tion of that same conclusion
at the end of the opinion, see id.  at 1057 (revised ozone NAAQS
"cannot be enforced by virtue  of [Subpart 2]"). We agree that the two
sentences are in  tension. To clarify the matter, we grant the EPA's
petition  for rehearing to the extent of making the following two 
revisions to our original opinion. First, we replace the final 
paragraph of Part III.A.2, see id. at 1050, with the following:


In sum, because the reference to s 107(d) in s 181(a)(1)  includes the
designation of an area as nonattainment for  ozone under a revised
ozone NAAQS, that is, under  s 107(d)(1), the EPA can enforce a
revised primary  ozone NAAQS only in conformity with Subpart 2.


Second, we replace the second sentence of the Conclusion, see  id. at
1057, with the following:


We do not vacate the new ozone standards because the  parties have not
shown that the standard is likely to  engender costly compliance
activities in light of our  determination that it can be enforced only
in conformity  with Subpart 2.


As with the PM2.5 NAAQS, our decision not to vacate the  ozone NAAQS
"is without prejudice to the ability of any party  to apply for
vacatur in the future, should circumstances  develop in which the
presence of this standard threatens a  more imminent harm." American
Trucking Ass'ns, Inc. v.  EPA, No. 97-1440 (D.C. Cir. Jun. 18,


III. Beneficent Health Effects


The arguments in the EPA's petition for rehearing give us  no reason to
doubt the correctness of our conclusion that "all  identifiable
effects," as used in CAA s 108(a)(2), "on its face  ... include[s]
beneficent effects." 175 F.3d at 1051. Nor do 


those arguments warrant consideration in a published opin- ion. We
express no opinion, of course, upon the effect, if any,  that studies
showing the beneficial effects of tropospheric  ozone, see id. at
1052, might have upon any ozone standard  the EPA may promulgate on


IV. Conclusion


For the above reasons, the EPA's petition for rehearing is


Granted in part and denied in part.


Tatel, Circuit Judge, concurring in part and dissenting in  part:


I concur in the partial grant of rehearing with respect to  enforcement
of the revised ozone standard because, as modi- fied, the opinion now
leaves open the possibility that EPA can  enforce the new ozone NAAQS
without conflicting with Sub- part 2's classifications and attainment
dates. While I too  think that we have jurisdiction to decide the
enforcement  issue, I write separately because I do not entirely agree
with  the rationale of the modified panel opinion.


The panel understood EPA's original position to be that,  although
Subpart 2 limited the Agency's enforcement of the  pre-existing
one-hour 0.12 ppm ozone NAAQS, it "has no  effect upon the EPA's
authority to enforce a revised primary  ozone NAAQS." American
Trucking Ass'ns v. EPA, 175  F.3d 1027, 1048 ("ATA"). That
interpretation, the panel held,  not only conflicted with section
7511(a)(1)'s text and legisla- tive history, see id., 175 F.3d at
1048-49, but by leaving the  Agency free to "requir[e] areas to comply
either more quickly  or with a more stringent ozone NAAQS," it defied
Congress's  clear intent to "extend[ ] the time for nonattainment
areas to  comply with the 0.12 ppm ozone NAAQS." Id. at 1049.


Having rejected the Agency's interpretation, the panel  went on to
agree with petitioners that Subpart 2 embodies "a  comprehensive
enforcement scheme" that "specifically pro- vides classifications and
dates for all areas designated nonat- tainment under any ozone NAAQS."
Id. at 1049, 1048 (em- phasis added). This holding meant that areas
not covered by  Table 1 in Subpart 2--i.e. those with one-hour ozone
design  values below 0.121 ppm--were completely exempt from any  ozone
regulation whatsoever. Although the panel acknowl- edged that EPA must
continue to revise the NAAQS, see id.  at 1047, it concluded that the
revised standard "cannot be  enforced by virtue of [Subpart 2]." Id.


After reading EPA's petition for rehearing and the various  responses,
I no longer believe that it was "the unambiguously  expressed intent
of Congress" to command EPA to revise the  ozone standards, while
denying it the power to enforce them.  Chevron U.S.A., Inc. v. NRDC,
467 U.S. 837, 842. Table 1 


specifically provides classifications and attainment dates for  some
areas, but as EPA points out, "it establishes no attain- ment dates or
classifications for nonattainment areas with  'design values' lower
than 0.121 ppm." EPA Pet. Reh'g at  22-23. As the Agency argues, it is
thus difficult to see how  Subpart 2 can "specifically provide[ ]"
attainment dates for  areas that are designated nonattainment under
the new stan- dard but are not covered by Table 1. See id. at 22-24.
This  gap in Table 1 makes it at least ambiguous whether Subpart 2 
"specifically provide[s]" classifications and attainment dates  for
all areas exceeding the revised 0.08 ppm ozone NAAQS.


EPA also points out that treating Subpart 2 as the exclu- sive
enforcement scheme for all areas leads to "irrational and 
contradictory consequences." Id. at 23. Subpart 2 provides  that
"[e]ach area designated nonattainment for ozone pursu- ant to section
7407(d) of this title shall be classified ... under  table 1, by
operation of law...." 42 U.S.C. s 7511(a)(1).  Even if the panel is
correct that the reference to section  7407(d) includes designations
under a revised NAAQS pursu- ant to section 7407(d)(1)(A), see Slip
Op. on Reh'g at 6-7, the  fact remains that the only "nonattainment
areas for which  classifications [and attainment dates] are
specifically provided  under" Table 1 are those having one-hour ozone
design values  of 0.121 ppm or greater. ATA, 175 F.3d at 1048 (quoting
42  U.S.C. s 7502(a)(1)(C), (a)(2)(D)). Classifying other areas 
"under table 1, by operation of law" is thus impossible or, at  the
very least, not "unambiguously" "specifically provided  for." And
although, as the panel noted, "a title [of a statute  or section]
cannot be allowed to create an ambiguity in the  first place," id., at
1050, the ambiguity in this statute--Can  section 7511(a)(1) be
applied literally to areas that have  attained the old standard but
fail to meet the new one?-- appears in the text of Subpart 2 itself.


Moreover, EPA has offered a plausible interpretation of the  statute
that reasonably reconciles the provisions of Subparts  1 and 2. In its
Petition for Rehearing, the Agency states that  "Subpart 2 addresses
continued nonattainment for the pri- mary one-hour ozone standard,"
EPA Pet. Reh'g at 20, while  Subpart 1 provides implementation
authority for the new 


ozone standard in areas that have already attained the old  one, see
id. at 20-22. The Agency articulated this same  reading of the statute
in its original brief, stating that "consis- tent with Congress'
intent, EPA interpreted the Subpart 2  provisions to remain in place
for areas not attaining the one- hour standard, and concluded the
one-hour standard should  continue to apply until EPA determines that
an area attains  that standard, thus facilitating continued
implementation of  the relevant Subpart 2 measures." EPA Ozone Brief
at 72.  The final rulemaking--the Agency action we are reviewing 
here--is even clearer about the relationship between Sub- parts 1 and


[A]t the time of the proposal of the new O3 standard,  EPA had proposed
an interpretation of the Act in the  proposed Interim Implementation
Policy (61 FR 65764,  December 13, 1996) under which the provisions of
sub- part 2 of part D of Title I of the Act would not apply to 
existing O3 nonattainment areas once a new O3 standard  becomes


In light of comments received regarding the interpre- tation proposed
in the Interim Implementation Policy,  EPA has reconsidered that
interpretation and now be- lieves that the Act should be interpreted
such that the  provisions of subpart 2 continue to apply to O3
nonattain- ment areas for purposes of achieving attainment of the 
current 1-hour standard. As a consequence, the provi- sions of subpart
2, which govern implementation of the  1-hour O3 standard in O3
nonattainment areas, will con- tinue to apply as a matter of law for
so long as an area is  not attaining the 1-hour standard. Once an area
attains  that standard, however, the purpose of the provisions of 
subpart 2 will have been achieved and those provisions  will no longer
apply. However, the provisions of subpart  1 of part D of Title I of
the Act would apply to the  implementation of the new 8-hour O3


To facilitate the implementation of those provisions  and to ensure a
smooth transition to the implementation  of the new 8-hour standard,
the 1-hour standard should 


remain applicable to areas that are not attaining the  1-hour standard.
Therefore, the 1-hour standard will  remain applicable to an area
until EPA determines that  it has attained the 1-hour standard, at
which point the  1-hour standard will no longer apply to that area.


62 Fed. Reg. 38,873 (1997), cited in EPA Ozone Brief at 72.  See also
40 C.F.R. s 50.9(b) (continuing to apply the one-hour  0.12 ppm
standard until it is attained).


To be sure, EPA's original brief did seem to advance the  position the
panel rejected--that in enforcing the new ozone  NAAQS, the Agency is
free to disregard altogether Subpart  2's timetable. See EPA Ozone
Brief at 69-71. Given the  clarity of the final rule, however, I no
longer believe that  EPA actually intended to argue that it could
subvert Subpart  2's schedule in enforcing the new ozone NAAQS. When 
EPA's lawyers said in the original brief that Subpart 2 is 
inapplicable to nonattainment areas under the new ozone  standard, I
assume they must have meant that even under  the new standard, Subpart
2 continues to apply to areas  covered by Table 1--not that Subpart 2
no longer applies at  all. Viewed this way, EPA's original brief and
its petition for  rehearing are perfectly consistent with the final
rule: all  three interpret the Act to mean that Subpart 2 still
applies to  an area until it attains the one-hour 0.12 ppm standard.
This  interpretation puts to rest the panel's concern that Subpart 
2's attainment schedule "would have been stillborn had the  EPA
revised the ozone NAAQS immediately after the Con- gress enacted the
1990 amendments." ATA, 175 F.3d at  1050.


The Agency's petition also explains the practical conse- quences of its
interpretation of Subpart 2. Although EPA  may not enforce a stricter
ozone standard in Los Angeles  earlier than the year 2012, see id., at
1049, the Agency need  not wait for Los Angeles to achieve the old
standard before  requiring the rest of the country to move toward
cleaner air.  Cf. EPA Pet. Reh'g at 25 (suggesting that Los Angeles
"is the  only area of the nation" where compliance with the 0.08 ppm 
NAAQS under Subpart 1 could possibly be required at the 


same time as compliance with the 0.12 ppm NAAQS under  Subpart 2). In
other words, Table 1 functions as a safe  harbor for areas like Los
Angeles whose ozone levels exceed  0.121 ppm.


To sum up, the panel rejected what it was led to believe  was EPA's
view that Subpart 2 applied only to nonattainment  areas under the old
standard but no longer applies at all  under the new standard. The
panel held instead that Sub- part 2 applies to all nonattainment areas
under any standard,  foreclosing implementation of a new standard in
any area not  covered by Table 1. EPA has now clarified its
interpretation  of the Act. A middle ground originally articulated in
its final  rulemaking, the Agency's position harmonizes its general 
enforcement authority under Subpart 1 with the specific  provisions of
Subpart 2. Subpart 2 continues to govern those  areas covered by Table
1, just as it did under the old NAAQS,  but in areas that have
attained the old standard, nothing  precludes enforcement of the new
standard under Subpart 1.


I would have granted rehearing and held that the Agency's  position
represents a reasonable interpretation of an ambigu- ous statute. See
Chevron, 467 U.S. at 844 (upholding EPA's  construction of NAAQS
attainment provisions of the Clean  Air Act, stating that "a court may
not substitute its own  construction of a statutory provision for a
reasonable inter- pretation made by the administrator of an agency.").
I  nonetheless concur in the judgment because the revised opin- ion's
statement that "the EPA can enforce a revised primary  ozone NAAQS
only in conformity with Subpart 2" leaves open  the possibility that
the new ozone standard can be implement- ed in areas that have
attained the old standard.


For the reasons set forth in my statement dissenting from  the denial
of rehearing en banc, I respectfully dissent from  the denial of
rehearing as to Part I of the panel opinion  ("Delegation").


United States Court of Appeals


FOR THE DISTRICT OF COLUMBIA CIRCUIT


---------


Filed October 29, 1999


No. 97-1440


American Trucking Associations, Inc., et al.,  Petitioners


v.


United States Environmental Protection Agency,  Respondent


Commonwealth of Massachusetts, et al.,  Intervenors


Consolidated with  97-1546, 97-1548, 97-1551, 97-1552, 97-1553,
97-1555,  97-1559, 97-1561, 97-1562, 97-1565, 97-1567, 97-1571, 
97-1573, 97-1574, 97-1576, 97-1578, 97-1579, 97-1582,  97-1585,
97-1586, 97-1587, 97-1588, 97-1592, 97-1594,  97-1596, 97-1597,


---------


No. 97-1441


American Trucking Associations, Inc., et al.,  Petitioners


v.


United States Environmental Protection Agency,  Respondent


Commonwealth of Massachusetts, et al.,  Intervenors


---------


Consolidated with  97-1502, 97-1505, 97-1508, 97-1509, 97-1510,
97-1512,  97-1513, 97-1514, 97-1518, 97-1519, 97-1526, 97-1531, 
97-1539, 97-1566, 97-1568, 97-1570, 97-1572, 97-1575,  97-1584,
97-1589, 97-1591, 97-1595, 97-1619


---------


On Respondent EPA's Suggestion for Rehearing En Banc


---------


Before: Edwards, Chief Judge, Wald, Silberman,  Williams, Ginsburg,
Sentelle, Henderson, Randolph,  Rogers, Tatel, and Garland, Circuit
Judges.


O R D E R


Respondent EPA's Suggestion for Rehearing En Banc and  the responses
thereto have been circulated to the full court.  The taking of a vote
was requested. Thereafter, a majority  of the judges of the court in
regular active service did not  vote in favor of the suggestion. Upon
consideration of the  foregoing, it is


ORDERED that the suggestion be denied.


Per Curiam


FOR THE COURT:


Mark J. Langer, Clerk


Circuit Judges Wald and Henderson did not participate in  this


Chief Judge Edwards and Circuit Judges Silberman,  Rogers, Tatel, and
Garland would grant the suggestion.


A statement of Circuit Judge Silberman dissenting from  the denial of
rehearing en banc is attached.


A statement of Circuit Judge Tatel dissenting from the  denial of
rehearing en banc, in which Chief Judge Edwards  and Circuit Judge
Garland join, is attached.


Silberman, Circuit Judge, dissenting from the denial of  rehearing en
banc: The panel's reliance on the nondelegation  doctrine to reject
EPA's interpretation of section 109 of the  Clean Air Act is rather
ingenious, but I regret that it seems  to me to be fundamentally
unsound. I do not think that  doctrine can be employed to force an
agency to narrow a  broad legislative delegation from Congress.


The doctrine, as Judge Tatel in dissent pointed out, Ameri- can
Trucking Ass'n v. EPA, 175 F.3d 1027, 1057-58 (D.C.  Cir. 1999)
("ATA") (Tatel, J., dissenting in part), is at this  stage of
constitutional "evolution" not in particularly robust  health. Justice
Rehnquist heroically attempted to inject vi- tality into the doctrine
in his powerful concurrence in the  Benzene case, see Industrial Union
Dep't, AFL-CIO v.  American Petroleum Inst., 448 U.S. 607, 671 (1980).
But, sad  to say, his view is not shared by a majority of the Court 
which has acknowledged only a theoretical limitation on the  scope of
congressional delegations to the executive branch.  See Mistretta v.
United States, 488 U.S. 361, 416 (1989)  (Scalia, J., dissenting)
("What legislated standard, one must  wonder, can possibly be too
vague to survive judicial scrutiny,  when we have repeatedly upheld,
in various contexts, a 'public  interest' standard?").


To be sure, the plurality in the Benzene case ostensibly  relied on the
doctrine to support its interpretation of the  Occupational Safety and
Health Act. See Benzene, 448 U.S.  at 645-46. But a careful reading of
the plurality opinion (not,  of course, an opinion of the Court, which
would bind us)  reveals that the doctrine was only a makeweight,
tossed into  the analysis, in light of Justice Rehnquist's
concurrence, to  help justify the result. The plurality, disturbed at
the seem- ingly draconian impact of the Secretary of Labor's standard 
as applied to several industries, analytically conflated the  scope of
the Secretary's discretion--the legitimate concern of  the
nondelegation doctrine--with the regulatory conse- quences of his
interpretation of the statute. Id. at 645. The  latter concern is not
really germane to the doctrine; indeed,  the Secretary was actually
claiming he had less discretion  than the plurality thought he had.
Accordingly, the Benzene  plurality opinion gives only lip service to


doctrine; the boundaries limiting the scope of congressional 
delegation to the executive branch remain only dimly perceiv- able. I
agree with Judge Tatel that the terminology of this  section of the
Clean Air Act does not come so close to those  boundaries to raise a
serious constitutional problem.


If it did, and we were faced with two conflicting interpreta- tions of
the statute--both plausible--I have no doubt that a  constitutionally
dubious agency interpretation could be reject- ed even in a
post-Chevron era. The majority questions that  proposition-and
confuses the issue--by stating that "the ap- proach of the Benzene
case ... has given way to the ap- proach of Chevron." Slip Op. on
Reh'g at 4. The Supreme  Court's opinion in Rust v. Sullivan, 500 U.S.
173, 191 (1991),  is to the contrary. See also infra at 1 (Tatel, J.,
dissenting  from denial of rehearing en banc) (citing Mistretta, 488
U.S.  at 373 n.7). In other words, the constitutional avoidance  canon
trumps Chevron deference. But that principle is not  relevant to this
case. Even assuming the statute was proble- matic, the panel was not
faced with two competing construc- tions, one of which might be
thought to avoid constitutional  difficulty. Indeed, the panel
concluded that there are no  intelligible principles "apparent from
the statute" that  brought EPA's discretion within constitutionally
acceptable  limits. ATA, 175 F.3d at 1034. If the panel believed that 
was so, it should have held the statute unconstitutional.  Instead the
panel, purporting to rely on Chevron, remanded  to EPA directing that
agency to come up with an artificially  narrow interpretation with
various suggestions offered by the  panel to accomplish that end.1 Id.
at 1038-40. By so doing, I  believe the panel undermines the purpose


That purpose is, of course, to ensure that Congress makes  the crucial
policy choices that are carried into law. The  ability to make those
policy choices (even if only at a broad  level of generality) is what
is meant by legislative power. See  U.S. Const. art. I, s 1 ("All
legislative Powers herein granted 




__________

n 1 Like the plurality opinion in Benzene, these suggestions seem  more
directed to encouraging wiser policy choices than interpreting  the
statute at issue.


shall be vested in a Congress of the United States."). It  hardly
serves--indeed, it contravenes--that purpose to de- mand that EPA in
effect draft a different, narrower version  of the Clean Air Act.2
Under that view Congress would be  able to delegate almost limitless
policymaking authority to an  agency, so long as the agency provides
and consistently  applies an "intelligible principle."3


That is not to say that EPA is totally free to exercise its  authority
at any point on the discretionary continuum that  Congress delegated
to it in the Clean Air Act. The Adminis- trative Procedure Act's
arbitrary and capricious standard also  limits the agency's actions.
As we have observed, the broad- er the substantive statutory
delegation the more likely that  the agency's policy choices will be
confined by the APA,  rather than the substantive statute. See
National Ass'n of  Regulatory Comm'rs v. ICC, 41 F.3d 721, 727 (D.C.
Cir. 1994)  ("Whether an agency action is to be judged as reasonable,
in  accordance with the APA's general arbitrary and capricious 
standard, or whether it is to be examined as a permissible 
interpretation of the statute vel non depends, at least theoret-
ically, on the scope of the specific congressional delegation 
implicated."). In that regard, I am quite uncertain whether  EPA's
regulatory choice meets that test. Judge Tatel's  emphasis on the




__________

n 2 The panel acknowledges this purpose but, relying on an old 
district court opinion as primary support, claims that its approach 
preserves two other rationales of the doctrine, limiting the ability
of  agencies to exercise delegated authority arbitrarily and providing
 meaningful standards for judicial review. See ATA, 175 F.3d at  1038
(citing Amalgamated Meat Cutters v. Connally, 337 F. Supp.  737,
758-59 (D.D.C. 1971). But these "purposes" are obviously  derivative
of the doctrine's primary function of ensuring that Con- gress makes
key policy decisions. It is, after all, only this so-called  "third"
purpose, see id., that has any connection to the doctrine's 


3 It is true that we used a similar approach in Industrial Union,  UAW
v. OSHA ("Lockout-Tagout I"), 938 F.2d 1310 (D.C. Cir. 1991). Although
one could distinguish that case, I think it rests on  a similarly
flawed analysis of the doctrine.


appear to me to answer the question. It would not matter  whether the
agency "actually adhered to a disciplined deci- sionmaking process,"
ATA, 175 F.3d at 1059, if its final  product was unreasonable. If we
were to rehear the case, I  would focus on that issue.


Doctrine aside, then, what is the practical difference be- tween my
approach and the panel's? The answer, I think, is  that the panel
engages--and by retaining jurisdiction prom- ises to continue to
engage, see id., 175 F.3d at 1057--in a  more searching review than
the arbitrary and capricious  standard would permit. By treating this
case as a statutory  interpretation question laden with constitutional
implications  the panel implicitly asserts a greater role for a
reviewing  court than is justified.


* * * *


I respectfully dissent from our denial of rehearing en banc.


Tatel, Circuit Judge, with whom Edwards, Chief Judge,  and Garland,
Circuit Judge, join, dissenting from the denial  of rehearing en


In explaining why they remain convinced that the Clean  Air Act
contains an unconstitutional delegation of legislative  power, my
colleagues merely repeat that EPA has failed to  articulate a
sufficiently limiting principle. See Slip Op. on  Reh'g at 1-3. They
then launch into a discussion of the  proper remedy once a court
encounters a problematic legisla- tive delegation and conclude that
"the approach of the Ben- zene case ... has given way to the approach
of Chevron."  Slip Op. on Reh'g at 4. But see supra at 2-3 (Silberman,
J.,  dissenting from the denial of rehearing en banc); Mistretta v. 
United States, 488 U.S. 361, 373 n.7 (1989) ("In recent years,  our
application of the nondelegation doctrine principally has  been
limited to the interpretation of statutory texts, and more 
particularly, to giving narrow constructions to statutory dele-
gations that might otherwise be thought to be unconstitution- al. See,


The issues discussed by my colleagues have no relevance to  the
constitutional question we face. As I pointed out in my  dissent, the
Clean Air Act's requirement that EPA set air  quality standards
"requisite to protect the public health" with  "an adequate margin of
safety" based on criteria that "accu- rately reflect the latest
scientific knowledge" is far more  specific than the sweeping
statutory delegations consistently  upheld by the Supreme Court for
more than sixty years. 42  U.S.C. s 7409(b)(1), s 7408(a)(2). See,
e.g., National Broad- casting Co. v. United States, 319 U.S. 190,
225-26 (1943)  (upholding delegation to the FCC to regulate broadcast
li- censing in the "public interest"); American Trucking Ass'n,  Inc.
v. EPA, 175 F.3d 1027, 1057-58 (D.C. Cir. 1999) (Tatel,  J.,
dissenting in part) (collecting cases). In language particu- larly
relevant to the highly technical and scientific process of  setting
national ambient air quality standards, the Supreme  Court in
Mistretta said this about the nondelegation doctrine:  "[O]ur
jurisprudence has been driven by a practical under- standing that in
our increasingly complex society, replete with  ever changing and more
technical problems, Congress simply  cannot do its job absent an


broad general directives." 488 U.S. at 372. Such extensive  and
unambiguous Supreme Court precedent is more than  enough to sustain
the Clean Air Act's delegation of authority  to the EPA. For purposes
of constitutional analysis, we thus  have no need to require that EPA
state "a far more determi- nate basis for decision" beyond the
intelligible principle Con- gress provided in the Clean Air Act. ATA,
175 F.3d at 1037.  Nor have we any reason to consider what remedies
might be  available were we faced with a statute that failed to meet 
constitutional standards. Unless petitioners can persuade the  Supreme
Court to return to the days of Schechter Poultry,  this "inferior"
court has no authority to demand anything  more from either EPA or


Neither American Lung Ass'n v. EPA, 134 F.3d 388 (D.C.  Cir. 1998), nor
the Benzene case, both heavily relied upon by  petitioners in their
opposition to the suggestion for rehearing  en banc, supports the
panel's opinion. No one in American  Lung doubted the
constitutionality of section 109's directive  that EPA establish NAAQS
"requisite to protect the public  health." Applying the familiar
arbitrary and capricious stan- dard, we held only that the Agency, in
setting the sulfur  dioxide NAAQS, had failed adequately to explain
its applica- tion of section 109. See American Lung, 134 F.3d at 392. 
The Benzene plurality stated nothing more than that section  3(8) of
the OSHA statute implicitly requires the Agency to  make a threshold
finding that a substance to be regulated  causes "significant risks of
harm." 448 U.S. at 641. In  support of this inference, the plurality
pointed to the statute's  structure, context, and legislative history,
see id. at 642-45,  adding that a broader reading "might" amount to an
unconsti- tutional delegation, id. at 646. The conclusion that
Congress  may constitutionally delegate authority to OSHA to regulate 
"significant" risks of harm hardly supports the panel's hold- ing that
Congress may not constitutionally delegate authority  to EPA to issue
NAAQS "requisite" to protect the public  health--a standard more
restrictive than the one the Su- preme Court derived and approved in


The panel's nondelegation holding plainly "involves a ques- tion of
exceptional importance" warranting en banc review. 


Fed. R. App. P. 35(a). Not only did the panel depart from a  half
century of Supreme Court separation-of-powers jurispru- dence, but in
doing so, it stripped the Environmental Protec- tion Agency of much of
its ability to implement the Clean Air  Act, this nation's primary
means of protecting the safety of  the air breathed by hundreds of
millions of people. See H.R.  Rep. No. 101-490, pt. 1, at 144-45


United States Court of Appeals


FOR THE DISTRICT OF COLUMBIA CIRCUIT


---------


Filed October 29, 1999


No. 97-1440


American Trucking Associations, Inc., et al.,  Petitioners


v.


United States Environmental Protection Agency,  Respondent


Commonwealth of Massachusetts, et al.,  Intervenors




__________

n


Consolidated with  97-1546, 97-1548, 97-1551, 97-1552, 97-1553,
97-1555,  97-1559, 97-1561, 97-1562, 97-1565, 97-1567, 97-1571, 
97-1573, 97-1574, 97-1576, 97-1578, 97-1579, 97-1582,  97-1585,
97-1586, 97-1587, 97-1588, 97-1592, 97-1594,  97-1596, 97-1597,




__________

n


No. 97-1441


American Trucking Associations, Inc., et al.,  Petitioners


v.


Environmental Protection Agency,  Respondent


Commonwealth of Massachusetts, et al.,  Intervenors 


__________

n


Consolidated with  97-1502, 97-1505, 97-1508, 97-1509, 97-1510,
97-1512,  97-1513, 97-1514, 97-1518, 97-1519, 97-1526, 97-1531, 
97-1539, 97-1566, 97-1568, 97-1570, 97-1572, 97-1575,  97-1584,
97-1589, 97-1591, 97-1595, 97-1619


---------


BEFORE: Edwards, Chief Judge; Wald, Silberman,  Williams, Ginsburg,
Sentelle, Henderson, Randolph,  Rogers, Tatel and Garland, Circuit
Judges.


O R D E R


Upon consideration of the petitions for rehearing en banc  of
intervenors-respondents New Jersey and Massachusetts in  Nos. 97-1440
and 97-1441, Citizens for Balanced Transporta- tion, et al. in No.
97-1440 and the American Lung Association  in Nos. 97-1440 and
97-1441, and the absence of a request by  any member of the court for


ORDERED that the petitions be denied.


Per Curiam


FOR THE COURT:


Mark J. Langer, Clerk


Circuit Judges Wald and Henderson did not participate in  this
matter.