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


ALLIED LOC REGN MFTR

v.

EPA


98-1526b

D.C. Cir. 2000


*	*	*


Garland, Circuit Judge: Petitioners in these consolidated  cases
challenge final regulations promulgated by the Environ- mental
Protection Agency (EPA) to limit the content of  volatile organic
compounds in architectural coatings, including  paints. The
regulations were issued pursuant to section  183(e) of the Clean Air
Act, which directs the agency to  regulate emissions from consumer and
commercial products  to help achieve the national ambient air quality
standard for  ozone. Petitioners are Dunn-Edwards Corporation, a large
 paint manufacturer, and Allied Local and Regional Manufac- turers
Caucus, an association of manufacturers and distribu- tors of
architectural coatings. Intervening on EPA's side are  other industry
groups--including the National Paint & Coat- ings Association, a trade
association of some 400 paint and  coatings manufacturers and
distributors--which urge us to  uphold the regulations.


Petitioners challenge the regulations on a multitude of  grounds,
including their asserted inconsistency with the Clean  Air Act, the
Regulatory Flexibility Act, the Unfunded Man- dates Reform Act, and
the Commerce Clause. We conclude 


that EPA's regulations are lawful and deny the petitions for  review.


I


The Clean Air Act, 42 U.S.C. ss 7401 et seq., directs EPA  to establish
national ambient air quality standards for harm- ful air pollutants.
See 42 U.S.C. s 7408(a). One of the  pollutants so identified and
regulated by the agency is  ground-level ozone. See 40 C.F.R. s 50.9.
Although in the  upper atmosphere ozone occurs naturally and forms a
protec- tive layer that shields human beings from the harmful effects 
of the sun's ultraviolet rays, at ground level, man-made ozone  can
have a wide array of negative effects on human health,  crops, and
forests.1 See EPA, Study of Volatile Organic  Compound Emissions From
Consumer and Commercial Prod- ucts, Report to Congress 1-1 (1995)
(J.A. at 518) [hereinafter  Report].


Section 183(e) of the Clean Air Act, added as part of the  1990
amendments to that Act, is aimed at mitigating the  problem of
ground-level ozone. See Clean Air Act Amend-




__________

n 1 Reporting on the Clean Air Act Amendments of 1990, the  Senate
Environment and Public Works Committee explained the  impact of
ground-level ozone on human health:


Ozone is fatal at high concentrations. At lower concentrations  found
in many urban areas in the United States, extensive  research has
shown that healthy adults and children begin to  exhibit adverse
health effects. These include chest pains,  shortness of breath,
coughing, nausea, throat irritation, and  increased susceptibility to
respiratory infections.


Potentially more troubling and less well understood are the  effects of
long-term chronic exposure to summertime ozone  concentrations found
in many cities. Regular out-of-doors work  or play during the hot,
sunny summer months in the more  polluted cities may cause biochemical
and structural changes in  the lung, paving the way for chronic
respiratory diseases.


S. Rep. No. 101-228, at 6 (1989); see also Consumer and Commer- cial
Products: Schedule for Regulation, Final Listing, 63 Fed. Reg. 
48,792, 48,793 (1998).


ments of 1990, Pub. L. No. 101-549, s 183(e), 104 Stat. 2399,  2444-47
(codified at 42 U.S.C. s 7511b(e)). Ozone is formed  when nitrogen
oxides (NOx) react with volatile organic com- pounds (VOCs) in the
presence of sunlight. See Report at  1-1 (J.A. at 518). Section 183(e)
directs EPA to regulate  emissions of VOCs from consumer and
commercial products  in order to help states achieve the national
ambient air  quality standard (NAAQS) for ozone.2


Section 183(e) contains a number of directions to EPA.  First, it
instructs the agency to "conduct a study of the  emissions of volatile
organic compounds into the ambient air  from consumer and commercial
products (or any combination  thereof)" in order to "(i) determine
their potential to contrib- ute to ozone levels which violate the
national ambient air  quality standard for ozone" and "(ii) establish
criteria for  regulating consumer and commercial products." 42 U.S.C. 
s 7511b(e)(2)(A). The section further directs that the study  be
completed, and a report submitted to Congress, "not later  than 3
years after November 15, 1990." Id.


Upon submission of the report, section 183(e) requires the  EPA to
"list those categories of consumer or commercial  products that [it]
determines, based on the study, account for  at least 80 percent of
the VOC emissions, on a reactivity- adjusted basis, from consumer or
commercial products in  areas that violate the NAAQS for ozone." Id. 
s 7511b(e)(3)(A). The statute then directs the agency "to  divide the
list into 4 groups establishing priorities for regula- tion" based on
the criteria developed in the study. Id.  Finally, the statute
requires the EPA to regulate one group  every two years until all four
have been regulated. See id.


After passage of the 1990 amendments, EPA instituted a  formal
regulatory negotiation process, aimed at achieving 




__________

n 2 The statute defines a "consumer or commercial product" as  "any
substance, product (including paints, coatings, and solvents), or 
article (including any container or packaging) held by any person, 
the use, consumption, storage, disposal, destruction, or decomposi-
tion of which may result in the release of volatile organic com-
pounds." 42 U.S.C. s 7511b(e)(1)(B).


consensus on the development of VOC regulations for paint  and
architectural coatings. Representatives of the affected  industry were
included on the negotiation committee. Com- plete consensus could not
be reached, however, and the  process was terminated in 1994. See
National Volatile Or- ganic Compound Emission Standards for
Architectural Coat- ings, Final Rule, 63 Fed. Reg. 48,848, 48,850
(1998) [hereinaf- ter Final Rule].


In March 1995, EPA submitted its statutorily-required  report to
Congress. The report concluded that "[c]onsumer  and commercial
products, while individually small sources of  VOC emissions,
contribute significantly to the ozone nonat- tainment problem." Report
at 2-1 (J.A. at 523). VOC  emissions from these products, the report
said, constitute  approximately 28% of all man-made VOC emissions. See
id.  at 2-8 (J.A. at 530). In compliance with Congress' direction, 
the report also set forth "criteria for regulating consumer and 
commercial products under the Act." Id. at 4-1 (J.A. at 557).  The
eight criteria listed by the agency were:


(1) utility  (2) commercial demand  (3) health or safety functions  (4)
emissions of 'highly reactive' compounds  (5) availability of
alternatives  (6) cost-effectiveness of controls  (7) magnitude of
annual VOC emissions  (8) regulatory efficiency 


Id. at 4-2 (J.A. at 558).3


In March 1995, EPA also published the statutorily- mandated list of
categories of consumer or commercial prod- ucts that together account
for at least 80% of VOC emissions  from such products in ozone
nonattainment areas on a reac- tivity-adjusted basis. See Consumer and
Commercial Prod- ucts, Notice of Product Category List and Schedule




__________

n 3 The first six criteria were derived from five factors specified in 
the statute. See 42 U.S.C. s 7511b(e)(2)(B). The last two were  added
by the agency. See infra Part IV.E.


Regulation, 60 Fed. Reg. 15,264 (1995) [hereinafter Notice of  Product
Category List]. Per Congress' instruction, EPA  divided those
categories into four groups, establishing priori- ties for regulation.
Architectural coatings were included in  the first group, along with
certain household consumer prod- ucts and automobile refinish
coatings. EPA determined that  these three categories account for
about 30% of the VOC  emissions from all consumer and commercial
products. See  Consumer and Commercial Products: Schedule for Regula-
tion, Final Listing, 60 Fed. Reg. 48,792, 48,793 (1998) [herein- after
Final Listing]. According to EPA, the architectural  coatings category
alone accounts for about 9% of the emis- sions from all consumer and
commercial products, making it  "one of the largest emissions sources
among the consumer  and commercial products categories." Final Rule,
63 Fed.  Reg. at 48,850; see National Volatile Organic Compound 
Emission Standards for Architectural Coatings, Proposed  Rule, 61 Fed.
Reg. 32,729, 32,731 (1996) [hereinafter Pro- posed Rule]; Report at


In September 1998, EPA published its final rules and  listing. As
proposed, the agency listed architectural coatings,  along with
consumer products and automobile refinish coat- ings, in the first
group of consumer and commercial product  categories subject to
regulation under section 183(e). See  Final Listing, 63 Fed. Reg. at
48,792. At the same time, it  issued a rule specifying limits on the
permissible VOC content  of products in each of the categories. See
National Volatile  Organic Compound Emission Standards for Automobile
Coat- ings, 63 Fed. Reg. 48,806 (1998); National Volatile Organic 
Compound Emission Standards for Consumer Products, 63  Fed. Reg.
48,819 (1998); National Volatile Organic Compound  Emission Standards
for Architectural Coatings, 63 Fed. Reg.  48,848 (1998).


Petitioners Dunn-Edwards and Allied challenge EPA's ini- tial study and
report to Congress, as well as the list and rule  that followed.4 They
assert that EPA has misinterpreted the 




__________

n 4 Dunn-Edwards challenges EPA's decisions only insofar as  they
relate to architectural coatings. Although Allied's brief sug-


Clean Air Act and that its regulations are arbitrary and  capricious.
By contrast, intervenor National Paint & Coat- ings Association,
which, like Allied, participated in the unsuc- cessful attempt at
regulatory negotiation, supports EPA's  regulations, describing them
as a "comprehensive set of rea- sonable limits that are tough but
fair, and which can contrib- ute significantly to ozone emissions
reductions as mandated  by the [Act]." NPCA Br. at 2-3.


II


In assessing petitioners' claim that EPA has misconstrued  the statute,
we are guided by the standards set forth in  Chevron U.S.A. Inc. v.
Natural Resources Defense Council,  Inc., 467 U.S. 837, 842-44 (1984).
Under Chevron's first step,  we ask whether Congress "has directly
spoken to the precise  question at issue," in which case we "must give
effect to the  unambiguously expressed intent of Congress." Id. at
842-43.  If "the statute is silent or ambiguous with respect to the 
specific issue," however, we move to Chevron's second step.  Id. at
843. Under step two, we must defer to the agency's  interpretation so
long as it is "based on a permissible con- struction of the statute,"
id., and is "reasonable in light of the  Act's text, legislative
history, and purpose," Southern Cal.  Edison Co. v. FERC, 116 F.3d
507, 511 (D.C. Cir. 1997).


As petitioners note, we also have the power to set aside a  final rule
promulgated under the Clean Air Act if the rule is  "arbitrary,
capricious, an abuse of discretion, or otherwise not  in accordance
with law." 42 U.S.C. s 7607(d)(9)(A). To  determine whether EPA's
rules are "arbitrary and capri- cious," we apply the same standard of
review under the Clean  Air Act as we do under the Administrative
Procedure Act  (APA), 5 U.S.C. s 706(2)(A). See Ethyl Corp. v. EPA, 51
 F.3d 1053, 1064 (D.C. Cir. 1995); Chemical Mfrs. Ass'n v.  EPA, 28
F.3d 1259, 1263-64 (D.C. Cir. 1994). In that regard, 




__________

n gested a challenge to the consumer products and automobile refin- ish
coatings rules as well, at oral argument counsel made clear that 
Allied's attack on those rules is identical to its attack on the 
architectural coatings rule. See Oral Arg. Tr. at 78-79.


we look for guidance to Motor Vehicle Manufacturers Ass'n  v. State
Farm Mutual Automobile Insurance, 463 U.S. 29, 43  (1983). Under the
standard set forth in that case, we must  affirm the EPA's rules if
the agency has considered the  relevant factors and articulated a "
'rational connection be- tween the facts found and the choice made.' "
Id. at 43  (quoting Burlington Truck Lines v. United States, 371 U.S. 
156, 168 (1962)).


In the following parts, we apply these standards to petition- ers'
challenge to the architectural coatings rule and related  EPA


III


Petitioners' principal argument is that the Clean Air Act  requires EPA
to regulate VOCs according to their "reactivi- ty," and that EPA
failed to do so. "Reactivity," as defined by  petitioners, is " 'the
amount of ozone formed per unit amount  ... of VOC added [to a given
atmospheric mixture].' "  Dunn-Edwards Br. at 3 n.4 (quoting National
Research  Council, Rethinking the Ozone Problem in Urban and Region-
al Air Pollution 153 (1991) (J.A. at 165)) (alterations in  original).
In petitioners' view, EPA ignored reactivity and  instead regulated
VOCs according to their "mass"--i.e., ac- cording to the amount of
VOCs contained in a product.


In this blunt form, petitioners' attack on the EPA is  factually
incorrect. As the EPA notes, it did "consider[ ]  reactivity in
prioritizing and selecting product categories to  be listed for
regulation." Final Listing, 63 Fed. Reg. at  48,795. It did so by
using available reactivity data to divide  VOCs into three groups:
negligibly reactive, reactive, and  highly reactive. See id.


EPA designated as negligibly reactive those compounds the  data showed
to have insignificant ozone-forming potential.  See id. To make that
designation, EPA relied on data  derived from the "method now normally
used for identifying  negligibly reactive VOC," the so-called "kOH
method." Re- port at 3-4 (J.A. at 549). "kOH reactivity data," the
agency  said, "have been obtained or estimated for nearly all VOC 


species of interest." Id. at 3-5 (J.A. at 550); see also id. at 3- 4
(J.A. at 549) (describing kOH method). Compounds deter- mined to be
negligibly reactive on the basis of that data were  excluded
altogether from the VOC emissions inventory and  from the related
regulations. See Final Listing, 63 Fed. Reg.  at 48,795.5


To differentiate between the remaining reactive VOCs,  EPA included
data derived from the "Incremental Reactivity"  method, a method "more
appropriate for rating reactive  VOC." Report at 3-4 (J.A. at 549).
EPA used this data to  identify ten classes of VOCs that are highly
reactive under  most conditions. See Final Listing, 63 Fed. Reg. at
48,795- 96. The agency then identified the product categories known 
to contain these highly reactive compounds, and estimated the 
quantity of highly reactive compounds emitted by those prod- uct
categories. See id. at 48,796. Finally, EPA adjusted the  mass
emissions figures for those product categories by apply- ing a
reactivity adjustment factor to the mass emissions of  their highly


Petitioners recognize that EPA did, at least in this tripar- tite
categorical form, regulate according to reactivity. Their  contention
is that this is not enough. Rather, petitioners  urge that the statute
requires EPA to determine the reactivi- ty of each individual VOC
species, and to use each VOC's  relative reactivity in promulgating
the final regulations. Peti- tioners' argument is based on their
analysis of three provi- sions of the Clean Air Act.


A


Section 183(e) of the Clean Air Act directs EPA "to conduct  a study of
the emissions of volatile organic compounds into  the ambient air from
consumer and commercial products (or  any combination thereof) in
order to--(i) determine their  potential to contribute to ozone levels
which violate the  national ambient air quality standard for
ozone...." 42 




__________

n 5 EPA labeled a compound negligibly reactive if its kOH value  was
lower than that of ethane. See Report at 3-5 (J.A. at 550).


U.S.C. s 7511b(e)(2)(A). Petitioners contend that the phrase 
"potential to contribute" as used in this provision is synony- mous
with the term "reactivity."


Accepting petitioners' contention that the Clean Air Act  requires a
determination of reactivity, however, does not  resolve the question
of whether reactivity must be deter- mined on an individual
VOC-by-VOC, rather than categorical,  basis. Allied contends that the
above-quoted provision re- quires EPA to determine the reactivity of
"each" volatile  compound. See Allied Br. at 14. Had Congress used the
 word "each" in the statute, the first step of the Chevron test  might
well dictate victory for Allied. But Congress did not  use that word.
Instead, it directed EPA to study emissions  of volatile organic
compounds "from consumer and commer- cial products (or any combination
thereof) in order to ...  determine their potential to contribute to
ozone levels." 42  U.S.C. s 7511b(e)(2)(a) (emphasis added). The
express refer- ence to "any combination thereof," and the direction to
deter- mine "their potential" rather than "each's potential" (or even,
 "their potentials"), renders it impossible to regard the statute  as
unambiguously expressing an intent that each VOC be  analyzed
individually. To the contrary, and moving to the  second step of the
Chevron test, these references support the  reasonableness of EPA's
contention that Congress authorized  the agency to proceed on a


EPA's reading of the statute is further supported by the  provision
requiring EPA to complete its study and submit its  report within
three years. See id. Relatively little data is  currently available on
the comparative reactivity of individual  VOC species. See Report at
2-10, 3-5 (J.A. at 532, 550)  (noting that Incremental Reactivity data
is only available for  "some 328 VOC species or groups of species").
According to  EPA's figures, not seriously contested by petitioners, a
de- tailed reactivity study of a single VOC species would take two 
months to accomplish. See EPA, Response to Comments on  Section 183(e)
Study and Report to Congress 2-75 (1998)  (J.A. at 740) [hereinafter
Response to Comments]. As "there  are approximately 1,000 different
VOC species associated  with the architectural coating industry
alone," id., EPA esti-


mates that a truly species-specific analysis of reactivities  would
require 166 years of testing. Accordingly, EPA rea- sonably concluded
that in light of the three-year statutory  timetable, Congress could
not have expected it to proceed on  a species-specific basis.


In reply to this argument, Dunn-Edwards suggests that  EPA could have
streamlined the task by confining its analysis  to the smaller
universe of those VOCs most commonly found  in architectural coatings.
"EPA need not," Dunn-Edwards  says, "have determined the reactivity of
every VOC." Dunn- Edwards Reply Br. at 6. Instead, a "reactivity-based
regula- tion could be implemented using information on only the three 
VOCs accounting for almost all emissions from waterborne 
architectural coatings and the eight VOCs accounting for  almost 80%
of emissions from solventborne architectural coat- ings." Id. at 6.
Individual analyses of just those eleven,  Dunn-Edwards argues, could
readily have been completed  within the statutory timetable.


This reply has two problems. First, Congress directed  EPA to study and
regulate the VOC emissions from all  "consumer or commercial
products," not only from architec- tural coatings. While the
streamlined approach Dunn-  Edwards suggests might accomplish the task
for the product  category of principal concern to petitioner, that
does not  answer EPA's contention that the agency would still have 
been unable to meet the statutory deadline across the board.


Moreover, and more important, in making this suggestion  Dunn-Edwards
effectively abandons the purity of the argu- ment it predicated on
Chevron step one. By contending that  EPA could have accomplished its
task within the time avail- able by studying only eleven of the VOCs
contained in  architectural coatings, Dunn-Edwards must accept that
the  statute does not require a separate evaluation of each VOC's 
individual reactivity. And if the statutory language permits  the
agency to regulate by analyzing only the eleven most  significant
VOCs, it is hard to see why it bars EPA from  instead taking the
analytical approach it preferred: excluding  from regulation those
VOCs with negligible reactivity, giving 


regulatory priority to product categories containing the ten  classes
of most highly reactive VOCs, and regulating the  balance of reactive
compounds according to the mass of their  emissions. It may be, as
petitioners contend, that theirs is  the better approach; but that is
not a question for this court.  Under Chevron, we are bound to uphold
agency interpreta- tions as long as they are reasonable--"regardless
whether  there may be other reasonable, or even more reasonable, 
views." Serono Lab., Inc. v. Shalala, 158 F.3d 1313, 1321  (D.C. Cir.


Finally, Dunn-Edwards implicitly suggests that EPA was  unfaithful to
section 183(e)(2)(A) because, rather than "deter- mine [VOCs']
potential to contribute to ozone levels" by doing  its own testing,
the agency relied on a review of the existing  scientific literature.
See Dunn-Edwards Br. at 12. But  nothing in section 183(e) declares
that the only way to "deter- mine" potential is through the agency's
own studies--some- thing Congress did demand in other sections of the
Clean Air  Act. See, e.g., 42 U.S.C. s 7511f (directing EPA to study
the  role of ozone precursors in tropospheric ozone formation, and 
commanding that the "Administrator shall utilize all available 
information and studies, as well as develop additional infor- mation,
in conducting the study required by this section")  (emphasis added).
Nor is there anything unreasonable about  the agency's conclusion that
it could "determine" VOCs' po- tential to contribute by examining data
in the existing litera- ture. To the contrary, "EPA typically has wide
latitude in  determining the extent of data-gathering necessary to
solve a  problem. We generally defer to an agency's decision to 
proceed on the basis of imperfect scientific information, rath- er
than to 'invest the resources to conduct the perfect  study.' " Sierra
Club v. EPA, 167 F.3d 658, 662 (D.C. Cir.  1999) (quoting American
Iron & Steel Inst. v. EPA, 115 F.3d  979, 1004 (D.C. Cir. 1997)).


B


As a second source of statutory support for their argument  that the
Clean Air Act requires a VOC-specific approach, 


petitioners note that in establishing "criteria for regulating 
consumer and commercial products," Congress directed EPA  to take into
consideration "[t]hose consumer and commercial  products which emit
highly reactive volatile organic com- pounds into the ambient air." 42
U.S.C. s 7511b(e)(2)(B)(iii).  But EPA expressly complied with this
congressional com- mand, adopting as one of its criteria "emissions of
highly  reactive compounds." See Report at 4-6 (J.A. at 562). As 
noted above, the agency implemented this criterion by identi- fying
ten classes of VOCs as "highly reactive," and using that 
classification to give priority to consumer and commercial  products
that emitted those highly reactive compounds. See  Final Listing, 63
Fed. Reg. at 48,796. Accordingly, this  statutory citation does not
add to the weight of petitioners'  challenge.


C


Finally, petitioners note that section 183(e)(3)(A) requires  EPA to
"list those categories of consumer or commercial  products" that
"account for at least 80 percent of the VOC  emissions, on a
reactivity-adjusted basis, from consumer or  commercial products in
areas that violate the NAAQS for  ozone." 42 U.S.C. s 7511b(e)(3)(A).
EPA is then directed to  "divide the list into 4 groups establishing
priorities for regula- tion," and to regulate one group every two
years until all have  been regulated. Id.


To comply with these requirements, EPA first used the  methodology we
have described above: it divided VOCs into  three sets, exempting
those with negligible reactivity and  applying an (upward) reactivity
adjustment factor to the mass  emissions of products with highly
reactive ingredients. After  ranking product categories based on eight
regulatory criteria,  see supra Part I, EPA developed the required
list of regulat- ed categories by starting with the highest ranked
category  and proceeding through successive categories until the list 
accounted for 80% of the emissions, adjusted for reactivity.  See
Final Listing, 63 Fed. Reg. at 48,796. The agency  identified
architectural coatings as "one of the largest sources 


of VOC emissions among categories of consumer and com- mercial
products," id. at 48,797, and therefore included it  within the first
group of regulated categories.


Because EPA did not evaluate each VOC's individual reac- tivity,
petitioners contend that "products containing less- reactive compounds
were included in an early group when,  instead, they should have been
exempted or regulated, if at  all, in later stages." Allied Br. at 20.
Petitioners argue that  these two possibilities--that some compounds
were regulated  that should have been exempted, and that architectural
coat- ings as a category were given priority regulation when they 
should have been regulated in one of the later groups-- render EPA's
methodology inconsistent with the statute's  command to account for
VOC emissions "on a reactivity- adjusted basis." We disagree.


First, the possibility that some compounds that were regu- lated should
not have been regulated at all is not likely  enough to undermine
EPA's methodology. As explained  above, EPA expressly exempted from
regulation those com- pounds determined to have negligible reactivity.
Moreover,  pre-existing EPA regulations allow companies to apply to 
have a compound excluded from the definition of VOC, and  thereby
exempted from regulation, based on evidence that it  is negligibly
reactive. See Final Listing, 63 Fed. Reg. at  48,798 (citing 40 C.F.R.
s 51.100(s)). Working with industry,  EPA has exempted more than 100
VOC species (42 com- pounds and 2 classes of compounds) under this
provision.  See Response to Comments at 2-90 (J.A. at 755); Final 
Listing, 63 Fed. Reg. at 48,798. Since data necessary to  determine
negligible reactivity are available for "nearly all  VOC species of
interest," Report at 3-5 (J.A. at 550), and  since even petitioners
concede that all VOCs have some  potential to contribute to ozone
formation, see Oral Arg. Tr.  at 27; see also Final Listing, 63 Fed.
Reg. at 48,797, petition- ers' challenge does not cast doubt on EPA's


Nor is the second possibility, that in a perfect regulatory  world
architectural coatings would not be in the first group of 


regulated products, of great moment in evaluating the reason- ableness
of EPA's method of regulation. There is no serious  argument that
architectural coatings would not appear some- where on even a perfect
regulatory list, given their status as  one of the largest sources of
VOC emissions among consumer  and commercial products. Indeed, section
183(e) directs the  EPA to list those categories of consumer or
commercial  products that account for "at least" 80% of VOC emissions
on  a reactivity-adjusted basis--implying that it could list catego-
ries accounting for 100% of such emissions. As to exactly  where on
that list architectural coatings should have ranked,  we can only say
what we have repeatedly said before: An  "agency is entitled to the
highest deference in deciding priori- ties among issues, including the
sequence and grouping in  which it tackles them." Associated Gas
Distribs. v. FERC,  824 F.2d 981, 1039 (D.C. Cir. 1987); see Sierra
Club v.  Thomas, 828 F.2d 783, 797 (D.C. Cir. 1987). Moreover, we 
must be particularly deferential in a case like this, where 
Congress--by instructing EPA to set priorities using multi- ple,
nondeterminative criteria6--has necessarily indicated an  intention to
delegate substantial discretion to the agency.


In sum, we conclude that nothing in the Clean Air Act  unambiguously
requires the EPA to analyze the reactivity of  each VOC on an
individual basis, and that EPA's more  categorical approach is a
reasonable interpretation of the  reactivity-related requirements of
the Act. Accordingly, the  architectural coatings rule survives review
under the stan- dard set by the Supreme Court in Chevron.


D


Petitioners contend that even if the Clean Air Act does not  require
EPA, as a matter of statutory construction, to regu- late VOCs based
on an analysis of their relative individual  reactivities, the agency
must nonetheless do so to avoid 




__________

n 6 Congress directed EPA to establish regulatory priorities  based on
criteria which "take into consideration" at least five listed 
factors. 42 U.S.C. s 7511b(e)(2)(B); see also supra note 3; infra 
Part IV.E.


regulating in an arbitrary and capricious fashion. As peti- tioners
note, EPA's own report conceded that: "[t]o be the  most effective,
ozone control strategies ideally should be  based not only on mass VOC
and NOx emissions but should  consider the relative photochemical
reactivity of individual  species." Report at 2-1 (J.A. at 523); see
also Notice of  Product Category List, 60 Fed. Reg. at 15,266. The key
 words in the quoted sentence, however, are "to be the most 
effective" and "ideally." Indeed, in the sentence following the  one
just quoted, EPA went on to state:


Reactivity data on VOC, especially those compounds used  to formulate
consumer and commercial products, is ex- tremely limited. Better data,
which can be obtained only  at great expense, is needed if the EPA is
to consider  relative photochemical reactivity in any VOC control 
strategy. In the meantime, a practical approach is to act  on the
basis of mass VOC emissions.


Report at 2-1 (J.A. at 523). In short, the agency concluded  that the
methodology it adopted, and which we have de- scribed above, was the
"most appropriate way to meet the  statutory requirements, given the
limitations and uncertain- ties surrounding the reactivity issue."
Report at 3-10 (J.A.  at 555).


Our role, of course, is to determine neither whether EPA's  approach
was "ideal," nor whether it was the "most appropri- ate," but only
whether it was reasonable. See Ethyl Corp. v.  EPA, 541 F.2d 1, 36
(D.C. Cir. 1976) (en banc) ("We must  look at the decision not as the
chemist, biologist or statistician  that we are qualified neither by
training nor experience to be,  but as a reviewing court exercising
our narrowly defined duty  of holding agencies to certain minimal
standards of rationali- ty."); see also State Farm, 463 U.S. at 43.
For the reasons  discussed in Part III.A-C above, we conclude that it
was.  See Animal Legal Defense Fund, Inc. v. Glickman, 204 F.3d  229,
234 (D.C. Cir. 2000) (noting overlap between analysis  under Chevron
and State Farm). We agree with the agency  that its general reliance
on the mass of VOC emissions,  coupled with the exemption for those


negligibly reactive and the upward adjustment for those  known to be
highly reactive, constitutes a reasonable ap- proach given both "the
uncertainties and inconsistencies of  reactivity," Report at 2-10
(J.A. at 532), and "Congress's  direction that the EPA complete the
study within three  years," Final Listing, 63 Fed. Reg. at 48,796. In
reaching  this conclusion, "[o]ur analysis is guided by the deference 
traditionally given to agency expertise, particularly when  dealing
with a statutory scheme as unwieldy and  science-driven as the Clean
Air Act." Appalachian Power  Co. v. EPA, 135 F.3d 791, 801-02 (D.C.


IV


In this Part, we consider a number of additional, miscella- neous
charges leveled by petitioners against the architectural  coatings
rule. Some raise questions of statutory interpreta- tion under the
Clean Air Act, some charge EPA with arbi- trary and capricious
decisionmaking under that Act, and some  involve a combination of the


A


Dunn-Edwards attacks the EPA study for "fail[ing] to  address the
beneficial environmental and health effects of the  negative
reactivity" of some VOCs. Dunn-Edwards Br. at  12. There is evidence,
the company contends, showing that  the emissions of certain types of
VOCs actually reduce ozone  levels. The agency's failure to consider
the positive health  effects of a restricted pollutant, Dunn-Edwards
continues,  constitutes both a violation of the Clean Air Act and
unrea- sonable agency action. See Dunn-Edwards Br. at 13 (citing 
American Trucking Ass'n v. EPA, 175 F.3d 1027, 1051 (D.C.  Cir. 1999),
cert. granted, 68 U.S.L.W. 3496 (U.S. May 22,  2000)).


The answer to this challenge is that EPA did consider the  possible
effects of negative reactivity. See Response to Com- ments at 2-92 to
2-95 (J.A. at 757-760). It concluded,  however, that the phenomenon
was too rare and unpredict- able to warrant changes in the regulatory
structure. See id.  at 2-92 to 2-93 (J.A. at 757-58) (concluding that
"reduction of 


ozone by VOC occurs in very limited circumstances"). Nega- tive
reactivity, the agency determined, occurs "only in very  limited
cases, with only a few species of VOC (not VOC  species typically used
in consumer and commercial products),  and under specific
meteorological conditions." Id. at 2-154  (J.A. at 802). Studies
offered by petitioners were not to the  contrary. See, e.g., J.A. at
985-86 (study describing "slightly  negative values" for two compounds
in one-hour test in Los  Angeles, but noting that all compounds tested
there showed  positive values in eight-hour tests). Because EPA
reasonably  considered, and discounted, the phenomenon of negative
reac- tivity, we reject this challenge.


B


In a related attack, Dunn-Edwards contends that EPA's  rule may also be
counterproductive because it "has the poten- tial to increase ozone
levels in two ways." Dunn-Edwards  Br. at 21. First, because the rule
imposes limits on the mass  of VOCs in a product, rather than on the
type (reactivity) of  the VOCs, it "allows for the possibility" that
producers of  architectural coatings may substitute more reactive VOCs
for  less reactive ones. Id. Although the reformulated products  would
then emit a smaller quantity of VOCs as measured by  mass, they would
generate more ozone over all. Second,  Dunn-Edwards warns, "if
performance is compromised" by  reducing the VOC content of
architectural coatings, the over- all volume of such products used to
attain the same results  will increase--in the form of more coats,
more touch-ups, and  more frequent recoating. Id.


As the quoted portions of petitioner's argument suggests, it  is framed
more as a series of theoretical possibilities than of  fact-based
predictions. Petitioners offer no evidence at all  that the VOC
substitution they fear will occur. EPA's own  view is that even if
such substitution did occur, the benefit  from reducing the total mass
of VOC emissions would out- weigh any differences in relative
reactivities of different  compounds. See EPA, National Volatile
Organic Compound  Emission Standards for Architectural Coatings,


for Promulgated Standards 2-297 (1998) (J.A. at 437) [herein- after
Background]. In the absence of contrary evidence, it is  to the expert
agency's prediction, rather than to the petition- er's, that we must
defer. See Her Majesty the Queen in  Right of Ontario v. EPA, 912 F.2d
1525, 1534 (D.C. Cir.  1990); New York v. EPA, 852 F.2d 574, 580 (D.C.
Cir. 1988).


EPA also found "no evidence or documentation to support  the[ ] claims
[that] increased thinning, more priming, more  topcoating, and more
frequent painting" would result if the  VOC content of architectural
coatings were reduced. Back- ground at 2-293 (J.A. at 433). To the
contrary, the agency  cited evidence that low VOC content coatings
perform well  and do not require additional coats to achieve the same 
results as those with high VOC content. See Background at  2-293 to
2-297 (J.A. at 433-37); Proposed Rule, 61 Fed. Reg.  at 32,738; see
also Final Rule, 63 Fed. Reg. at 48,869 (finding  "no link between
product quality and VOC content since  quality, high-performing
products are available in a wide  range of VOC content levels in many
product categories").  In reply, Dunn-Edwards cites a California
survey indicating  that between 1980 and 1990, total VOC emissions
from archi- tectural coatings increased by 16%, notwithstanding that
the  VOC content of such coatings decreased by 37% during the  same
period. See Dunn-Edwards Reply Br. at 10. Poorer  performance by the
reduced VOC paint "may be responsible,"  Dunn-Edwards asserts. Id. And
it may be that Dunn- Edwards is right. But without evidence of
cause-and-effect,  we cannot know. Dunn-Edwards offers no evidence
that the  increase in VOC emissions during the 1980s was due to the 
poorer performance of the paints, rather than to the cause  suggested
by the EPA: an increase in the volume of paints  used during that
time, spurred by growth in the population,  an improved economy, and


C


The architectural coatings rule regulates the manufacture  and sale of
coating products nationwide. Allied contends that  this exceeds EPA's
authority, which it asserts is limited to 


regulating manufacture and sale within "nonattainment" ar- eas. A
nonattainment area is one that either does not meet  the national
primary or secondary ambient air quality stan- dard for ozone, or that
contributes to ozone levels in a nearby  area that does not meet the
standard. See 42 U.S.C.  s 7407(d). Allied's contention principally
relies on two sub- sections of section 183(e). First, subsection
(2)(A) requires  EPA to study VOC emissions in order to determine
their  potential "to contribute to ozone levels which violate the 
national ambient air quality standard for ozone." Id.  s
7511b(e)(2)(A)(i). Second, subsection (3)(A) requires the  EPA to
list, and then to regulate, those categories of products  that
"account for at least 80 percent of the VOC emissions  ... from
consumer or commercial products in areas that  violate the NAAQS for


Neither of these provisions says anything about where the  regulated
product itself must be manufactured or sold, or  about the geographic
scope of EPA's regulatory authority.  Rather, the first directs EPA to
consider the potential of  emissions to contribute to ozone levels
that violate the  NAAQS; the second instructs it to regulate
categories of  products that account for a specified percentage of
emissions  in nonattainment areas. As EPA concludes, this language 
permits the agency to regulate nationwide in order to accom- plish
emissions reduction in nonattainment areas.


EPA's reading is bolstered by consideration of other provi- sions in
the same section. For example, subsection (3)(A)  also states that
"[i]n order to carry out this section, the  Administrator may, by
regulation, control or prohibit any  activity, including the
manufacture or introduction into com- merce, offering for sale, or
sale of any consumer or commer- cial product." Id. s 7511b(e)(3)(A)
(emphasis added); see  also id. s 7511b(e)(4) ("The regulations under
this subsection  may include any system or systems of regulation as
the  Administrator may deem appropriate."). Similarly, subsec- tion
(1)(C) defines "regulated entities" as manufacturers and  distributors
of consumer or commercial products for sale in  interstate commerce
"in the United States," without geo- graphic limitation. Id. s


Congress did direct EPA to regulate VOCs in order to  improve
conditions within nonattainment areas, nothing in the  statute limits
its ability to regulate the manufacture and sale  of VOCs outside such
areas if such regulation is reasonably  related to that end.7


EPA readily persuades us that nationwide regulation is  reasonably
related to the statutory objective. First, architec- tural coating
products are widely distributed and easily trans- portable across area
boundaries. See Final Listing, 63 Fed.  Reg. at 48,804. End-users
(e.g., commercial painters) them- selves may well utilize these
products in different locations  from day to day. See id.8
Accordingly, as EPA reasoned, a  national rule is necessary to
"preempt opportunities for end- users to purchase such consumer and
commercial products in  attainment areas and then use them in
nonattainment areas,  thereby circumventing the regulations and
undermining the  decrease in VOC emissions in nonattainment areas."


Second, just as coating products are easily transportable,  so too are
the VOCs they release and the ozone the VOCs 




__________

n 7 For that reason, section 183(e) is different from Clean Air Act 
section 165(a), which we considered in Alabama Power Co. v. Costle, 
636 F.2d 323 (D.C. Cir. 1979). The latter section expressly limits 
EPA's permit authority to facilities "constructed in any area to 
which [Part C] applies," 42 U.S.C. s 7475(a) (emphasis added), See
Alabama  Power, 636 F.3d at 365. Section 183(e) does not contain an
analo- gous limitation.


8 As the National Paint & Coatings Association wrote in its 
intervening brief in support of the EPA:


A manufacturer or distributor, whether big or small, that sells  an
architectural coatings product can never be sure where that  product
will end up being used. For example, a small manu- facturer in
Maryland who manufacturers his paint solely in  Maryland and sells his
paint to contractors only in Maryland  may have his paint used in
Washington, D.C. one day, Virginia  the next day, West Virginia the
next day, and finally used to  paint a weekend beach house in Delaware


NPCA Br. at 24.


create. Ambient VOCs and ozone do not obey geographic  boundaries and
can flow freely between attainment and non- attainment areas. See
Final Listing, 63 Fed. Reg. at 48,804;  see also Virginia v. EPA, 108
F.3d 1397, 1400 (D.C. Cir.  1997). Thus, EPA reasonably concluded that
"emissions in  attainment areas can contribute to nonattainment in
adjoining  nonattainment areas," and that a nationwide rule is
therefore  consistent with its statutory mandate. Final Listing, 63
Fed.  Reg. at 48,803.


D


Dunn-Edwards contends that because section 183(e) re- quires a study of
"emissions of volatile organic compounds  into the ambient air," 42
U.S.C. s 7511b(e)(2)(A), EPA violat- ed its directive by focusing its
study and rule on VOC content  rather than emissions. That focus,
petitioner suggests, as- sumes without foundation that all VOCs
contained in a coat- ing will be emitted into the ambient air. But EPA
did not  assume that all of a product's VOCs would be emitted. 
Rather, it employed a test to determine the mass of solvents  that
would volatize, and limited its calculation of VOC content  to the


Dunn-Edwards also contends that even when VOCs are  emitted from a
product, they may not become "available" in  the atmosphere to form
ozone--for example, because they  may be emitted indoors rather than
outside. EPA considered 




__________

n 9 In EPA's test, the paint sample is weighed, heated, and  reweighed.
VOC content is calculated as the difference in the two  weights, after
also subtracting the weight of water and any exempt  compounds. Hence,
solvents that do not volatize under the test  conditions are not
measured as VOC. See Response to Comments  at 2-56 (J.A. at 723). In a
footnote, Dunn-Edwards contends that  because paints are not heated
when applied, this test "does not bear  the necessary relationship to
actual conditions in which coatings are  used." Dunn-Edwards Br. at 16
n.16 (citing Chemical Mfrs. Ass'n  v. EPA, 28 F.3d 1259, 1264 (D.C.
Cir. 1994)). EPA's rejoinder is  that heating simply accelerates the
emissions of VOC, but does not  increase total emissions over time. In
the absence of contrary  evidence, we defer to the agency's expert
opinion.


this assertion during the rulemaking, and responded by point- ing to
recent studies suggesting that "close to 100 percent of  the VOC from
paint is eventually emitted into the ambient  air." Response to
Comments at 2-64 (J.A. at 729). Because  this conclusion is supported
by substantial evidence, the  agency's decision to control VOC
emissions through the regu- lation of VOC content is reasonable.10


E


Section 183(e) directs EPA to take into consideration five  factors in
establishing criteria for regulating consumer and  commercial
products, as well as in establishing regulatory  priorities among
those products. See 42 U.S.C.  s 7511b(e)(2)(B), (e)(3)(A). Allied
contends that EPA erred  by failing to consider the last three factors
listed in the  statute:


(iii) Those consumer and commercial products which  emit highly
reactive volatile organic compounds into the  ambient air.


(iv) Those consumer and commercial products which are  subject to the
most cost-effective controls.


(v) The availability of alternatives (if any) to such con- sumer and
commercial products which are of comparable  costs, considering
health, safety, and environmental im- pacts.




__________

n 10 Dunn-Edwards also contends that EPA was required to  account for
reactivity variation caused by differences in the makeup  of the
ambient air in different airsheds, noting that the agency  conceded
that "ideally" ozone control strategies should consider the 
conditions in specific airsheds. See Dunn-Edwards Br. at 17 n.17 
(citing Report at 2-1 (J.A. at 523)). Nothing in the statutory 
language, however, requires airshed-by-airshed analysis. Nor does 
this court's authority extend to requiring EPA to utilize the "ideal" 
strategy, particularly not when the agency concludes that such a 
strategy is not practical in light of the limitations of the existing 
data. See Report at 2-1 (J.A. at 523).


Id. s 7511b(e)(2)(B).11 We reject this challenge.


First, EPA did consider the three listed factors. Each was  expressly
included among the regulatory criteria adopted by  the agency, and was
applied in establishing regulatory priori- ties. See Report at 4-6
(J.A. at 562) (factor iii); id. at 4-10 to  4-11 (J.A. at 566-67)
(factor iv); id. at 4-8 to 4-9 (J.A. at  564-65) (factor v); see also
Final Listing, 63 Fed. Reg. at  48,794 (listing criteria); Notice of
Product Category List, 60  Fed. Reg. at 15,266 (same); Report at 4-12
to 4-13 (J.A. at  568-69) (describing application of the criteria);
EPA, Nation- al Air Pollution Control Techniques Advisory Committee 
Meeting on Consumer and Commercial Products 53 (1995)  (J.A. at 700)
(describing EPA's scoring of product categories  based on the


Second, EPA's consideration of these factors was adequate  to
constitute reasoned decisionmaking. As we have discussed  above, EPA
considered the third factor by assigning greater  weight to those
products that emit VOCs from one of the ten  classes of VOCs that are
highly reactive, an approach we  regard as consistent with the statute
and neither arbitrary  nor capricious. See supra Part III. EPA
reasonably consid- ered the fourth factor by assigning a higher
priority to  categories of products that can reduce VOC emissions at 
lowest cost. See Report at 4-10 to 4-11 (J.A. at 566-67).12  And EPA
adequately considered the fifth factor, the availabil- ity of
alternatives at comparable costs, by applying a criterion  that
evaluated the possibility of reformulation of the product  and the
availability of substitutes. See Report at 4-8 to 4-9 




__________

n 11 The first two factors listed in the statute are: "(i) The uses, 
benefits, and commercial demand of consumer and commercial  products[;
and] (ii) The health or safety functions (if any) served by  such
consumer and commercial products." 42 U.S.C.  s 7511b(e)(2)(B).


12 EPA used cost-effectiveness data where it was available, and  where
it was not, used a matrix that considered the availability of 
alternatives and the mass of emissions from the product. See  Report
at 4-10 to 4-11 (J.A. at 566-67).


(J.A. at 564-65); see also Response to Comments at 2-27 (J.A.  at
714).13


In addition to alleging that EPA failed to consider these  three
statutorily-enumerated factors, Allied contends that  EPA
impermissibly considered two further factors not listed  in the
statute: "magnitude of annual VOC emissions" and  "regulatory
efficiency and program considerations." Final  Listing, 63 Fed. Reg.
at 48,794; see supra note 3. Although  it is true that "an agency rule
would be arbitrary and  capricious if the agency has relied on factors
which Congress  has not intended it to consider," State Farm, 463 U.S.
at 43,  that is not the case here. Nothing in section 183(e) suggests 
that Congress intended to limit EPA's consideration to the  five
factors specified in the statute. Indeed, the structure of  the
section suggests the contrary. Subsection (2)(A) first  directs the
agency to "establish criteria"; subsection (2)(B)  then directs that
"[i]n establishing the criteria," the agency  "shall take into
consideration" the five listed factors. The  reasonable inference
taken by EPA is that while it must  consider the five listed factors,
it is not barred from consider- ing additional ones. See George Warren
Corp. v. EPA, 159  F.3d 616, 624 (D.C. Cir. 1998) (noting this court's
"usual  reluctance to infer from congressional silence an intention to
 preclude the agency from considering factors other than  those listed


Moreover, the two additional criteria are reasonable in light  of the
use to which Congress wanted all of the criteria to be  put:
establishing regulatory priorities among the categories  of consumer
and commercial products. See 42 U.S.C.  s 7511b(e)(3)(A). We have
already considered, and judged  permissible, EPA's accordance of
greater regulatory priority  to product categories that emit greater
masses of VOCs--the  first of the two additional criteria. See supra
Part III. The  agency's consideration of the second additional factor,
denom- inated as "regulatory efficiency," seems nothing more than 




__________

n 13 EPA reasonably relied on consumer acceptance, as measured  by
market share data, as a surrogate for cost data which was of  limited
availability. See Report at 4-8 to 4-9 (J.A. at 564-65); see  also
Response to Comments at 2-27 (J.A. at 714).


regulatory common sense: in determining priorities, EPA  considered
which categories it could regulate quickly because,  for example, the
agency had ongoing or recently completed  rulemakings concerning them,
or because they raised factual  issues in common with other
categories. See Report at 4-12  to 4-13 (J.A. at 568-69).


V


So far, we have considered challenges to the architectural  coatings
rule based on the Clean Air Act. In this part, we  consider Allied's
claims that the rule is contrary to the  Regulatory Flexibility Act
(RFA)14 as amended by the Small  Business Regulatory Enforcement
Fairness Act of 1996  (SBREFA),15 and to the Unfunded Mandates Reform
Act  (UMRA).16


A


Section 603(a) of the RFA requires that an agency, at the  time of
issuance of a notice of proposed rulemaking, publish  an initial
regulatory flexibility analysis which "shall describe  the impact of
the proposed rule on small entities." 5 U.S.C.  s 603(a). Section
603(c) requires that such an initial analysis  also describe "any
significant alternatives to the proposed  rule which accomplish the
stated objectives" of the applicable  statute while minimizing
significant economic impact on small  entities. Id. s 603(c). Allied
contends that EPA failed to  comply with section 603(a) by failing to
discuss two such  economic impacts: "stigmatic harm" allegedly arising
from  the agency's suggestion that it may impose more stringent  VOC
limits in future regulations;17 and asset devaluation, in  that the
coatings rule allegedly will render existing product 




__________

n 14 5 U.S.C. ss 601 et seq.


15 Pub. L. No. 104-121, ss 241-42, 101 Stat. 857, 864-68 (1996).


16 2 U.S.C. ss 1501 et seq.


17 In announcing the architectural coatings rule, EPA stated  that in
the future "an additional study for this category may be 


formulas valueless. Allied also contends that EPA failed to  comply
with section 603(c) by failing to consider label di- rections as an
alternative to VOC limits.


We are without jurisdiction to consider these challenges to  EPA's
compliance with the initial regulatory flexibility analy- sis
requirements of section 603. Section 611(c) of the RFA  states that
"[c]ompliance or noncompliance by an agency with  the provisions of
this chapter shall be subject to judicial  review only in accordance
with this section." 5 U.S.C.  s 611(c). Section 611(a) specifically
lists the sections of the  RFA subject to judicial review, and section
603 is not on the  list.18 See id. s 611(a)(1), (2).




__________

n warranted to determine the feasibility of additional reductions in 
VOC limits." Final Rule, 63 Fed. Reg. at 48,872. Allied contends  not
only that this announcement imposes a "stigma" on manufactur- ers, but
that EPA would be without authority to issue such addi- tional
reductions. EPA replies, inter alia, that this claim is unripe:  The
agency has not yet decided whether it will issue any further 
regulations, and Allied has not established that it will suffer any 
harm in the interim. We agree. See Grand Canyon Air Tour  Coalition v.
FAA, 154 F.3d 455, 471 (D.C. Cir. 1998); Florida  Power & Light Co. v.
EPA, 145 F.3d 1414, 1419-21 (D.C. Cir. 1998).  Allied "will have ample
opportunity later to bring its legal challenge  at a time when harm is
more imminent and more certain." Ohio  Forestry Ass'n v. Sierra Club,
523 U.S. 726, 734 (1998).


18 In its reply brief, Allied notes that unlike challenges to an 
agency's compliance with section 603 (concerning initial regulatory 
flexibility analyses), challenges to compliance with RFA section 604 
(concerning final regulatory flexibility analyses) are included in the
 jurisdictional list of section 611. Allied suggests that the
challenges  noted in the above text can be reformulated as challenges
to  compliance with section 604. In relevant part, that section
requires  the agency to describe the steps it has taken "to minimize
the  significant economic impact on small entities consistent with the
 stated objectives of applicable statutes, including a statement of
...  why each of the other significant alternatives to the rule
considered  by the agency ... was rejected." 5 U.S.C. s 604(a)(5)
(emphasis  added). For the reasons noted in the text, Allied has not


That, however, is not the end of the story. As Allied points  out,
although we may not review EPA's handling of these  issues in terms of
the agency's compliance with the RFA, we  may consider them in
determining whether EPA complied  with the overall requirement that an
agency's decisionmaking  be neither arbitrary nor capricious. See
Clean Air Act, 42  U.S.C. s 7607(d)(9)(A); see also APA, 5 U.S.C. s
706(2)(A).  That was the law prior to passage of SBREFA's amendments 
to the RFA, see Thompson v. Clark, 741 F.2d 401, 405 (D.C.  Cir.
1984); Small Refiner Lead Phase-Down Task Force v.  EPA, 705 F.2d 506,
539 (D.C. Cir. 1983), and it was not  altered by those amendments.19


For an agency's decisionmaking to be rational, it must  respond to
significant points raised during the public com- ment period. See Home
Box Office, Inc. v. FCC, 567 F.2d 9,  35-36 (D.C. Cir. 1977). EPA did
so here. The agency stated  that it was not aware of any stigmatic
harm of the kind urged  by Allied, and reasonably concluded that the
comments sub- mitted on the subject had "not provided enough detail to
 allow the EPA to consider the issue further." Background at  2-334
(J.A. at 474). Allied's unadorned allegation in its brief,  that
"[s]uch impacts are significant," Allied Br. at 23, adds no  further
detail and no reason to require further agency re- sponse. EPA also
reasonably rejected the contention that it  was ignoring the
regulation's impact on the value of existing 




__________

n lished that the economic impacts and regulatory alternative it 
contends EPA ignored can be classified as "significant."


19 Prior to the amendments, section 611(b) stated: "When an  action for
judicial review of a rule is instituted, any regulatory  flexibility
analysis for such rule shall constitute part of the whole  record of
agency action in connection with the review." 5 U.S.C.  s 611(b)
(1994). In Thompson, 741 F.2d at 405, we held that those  words "mean[
] that the reviewing court will consider the contents  of the
preliminary or final regulatory flexibility analysis, along with  the
rest of the record, in assessing not the agency's compliance with  the
Regulatory Flexibility Act, but the validity of the rule under  other
provisions of law," particularly the APA. The current version  of
section 611(b) contains the same words, with minor stylistic 


product formulas, noting that to the contrary it was directly 
considering that impact by analyzing the effect of the regula- tion on
annual profits per product. See Background at 2-334  (J.A. at 474).


To be regarded as rational, an agency must also consider  significant
alternatives to the course it ultimately chooses.  See State Farm, 463
U.S. at 48-51; Grand Canyon Air Tour  Coalition v. FAA, 154 F.3d 455,
471 (D.C. Cir. 1998); Public  Citizen v. Steed, 733 F.2d 93, 99 (D.C.
Cir. 1984). Allied  contends that the agency should have considered
imposing a  requirement that labels contain directions for responsible
use  of coating products, as an alternative to imposing VOC limits  on
such products.20 But the agency did consider the possibili- ty of
imposing label directions as an addition to product  reformulation,
and even in that respect found "it would be  impossible to predict the
VOC reductions achieved by provid- ing the consumer with directions
for use." Report at 2-14  (J.A. at 536). Allied offers no response to
this defect in the  labeling alternative, and no reason to believe
that such an  approach would accomplish the objectives of the Clean
Air  Act. Accordingly, we reject Allied's challenges under the 




__________

n 20 The Clean Air Act authorizes, but does not require, "di- rections
for use" as one of numerous possible means of achieving  emissions
reduction. 42 U.S.C. s 7511b(e)(1)(A) (defining "best  available
controls" as the degree of emissions reduction achievable  through
application of "the most effective equipment, measures,  processes,
methods, systems or techniques, including chemical re- formulation,
product or feedstock substitution, repackaging, and  directions for
use, consumption, storage, or disposal").


21 Allied briefly raises two further RFA claims. First, it  charges
that the agency failed to comply with the requirement of  section
609(b) that it, inter alia, convene a review panel prior to  issuing
the initial regulatory flexibility analysis. This court, howev- er,
has no jurisdiction to review challenges to an agency's compli- ance
with section 609(b). See 5 U.S.C. s 611(a)(1)-(2), (c). Second, 
Allied contends that EPA failed to comply with the requirement of 
section 601(3) that it provide an opportunity for public comment 
before adopting (as it did) a definition of the term "small business"


B


Allied contends that EPA violated provisions of the Un- funded Mandates
Reform Act that require preparation of a  written cost-benefit
analysis, see 2 U.S.C. s 1532(a)(2), and  selection of the "least
costly, most cost-effective or least  burdensome alternative that
achieves the objectives of the  rule," id. s 1535(a). UMRA itself
expressly denies courts  jurisdiction to review compliance with the
latter provision.  See id. s 1571(b)(1); see also id. s 1571(a). And
while the  Act permits limited judicial review of compliance with the 
requirement to prepare a written cost-benefit analysis,22 that 
requirement is not triggered unless the rule in question may  result
in expenditures of $100 million or more in any one  year, see id. s
1532(a). Because EPA estimated the total  cost associated with the
architectural coatings rule to be only  $32 million per year, see
Final Rule, 63 Fed. Reg. at 48,855, it  concluded that UMRA was


Allied challenges EPA's cost estimate, but advances little  basis for
such a challenge beyond the complaints we consid- ered above in the
context of Allied's RFA claim: Petitioner  contends that EPA ignored
the "stigmatic" costs it imposed  through its suggestion that more
stringent VOC limits might 




__________

n different from that referenced in the statute. See 5 U.S.C.  s
601(3); 15 U.S.C. s 632(a). Although we do have jurisdiction to 
review a section 601 challenge, see 5 U.S.C. s 611(a)(1)-(2), Allied's
 challenge fails on the merits because EPA did provide an opportuni-
ty for public comment on its proposed definition. See National 
Volatile Organic Compound Emission Standards for Architectural 
Coatings, Extension of Public Comment Period, 61 Fed. Reg.  46,410,
46,411 (1996); Background at 2-373 to 2-375, 2-424 to 2-426  (J.A. at


22 UMRA, 2 U.S.C. s 1571(a)(2)(A), states that agency compli- ance with
section 1532 is subject to judicial review only under 5  U.S.C. s
706(1) (court may compel agency action unlawfully with- held). If an
agency fails to prepare the written statement required  by section
1532, "a court may compel the agency to prepare such  written
statement," 2 U.S.C. s 1571(a)(2)(B), but the failure may  "not be
used as a basis for ... invalidating or otherwise affecting  [the]
rule," id. s 1571(a)(3).


be promulgated in the future, as well as the impact of the  coatings
rule on the market value of existing product formu- las.23 We
concluded above that EPA dealt with these issues  in a reasonable
manner and, given the limited judicial review  applicable to
compliance with section 1532(a), see supra note  22, we have no
warrant for inquiring further under UMRA.24


VI


Finally, we consider Allied's argument that in regulating 
architectural coatings, Congress exceeded its constitutional 
authority "[t]o regulate Commerce ... among the several  States." U.S.
Const., art. I, s 8, cl. 3. Dunn-Edwards does  not join in this
attack, and the intervenor National Paint &  Coatings Association
actively opposes it, preferring uniform  national regulation to the
"multiple, divergent state rules"  that would otherwise hold sway.




__________

n 23 Allied's brief also asserts, without elaboration, that EPA 
"excluded from its calculus losses to (1) retailers, (2) contractors,
(3)  workers, and (4) consumers," and that each of these categories 
"may alone reach $100,000,000 in any year." Allied Br. at 25. But  EPA
did consider the effect of the rule on many of these groups, see  EPA,
Draft Economic Impact Analysis and Regulatory Flexibility  Analysis of
Air Pollution Regulations: Architectural and Indus- trial Maintenance
Coatings 2-32 to 2-40, 2-44 to 2-45 (J.A. at 33- 41, 45-46);
Background at 2-364 to 2-366 (J.A. at 1017-19), and  Allied offers
neither support for nor explanation of the loss calcula- tion it


24 In a related argument, Dunn-Edwards contends that EPA  must consider
costs in the course of examining "economic feasibili- ty," a factor in
the evaluation of "best available controls" under the  statute, 42
U.S.C. s 7511b(e)(1)(A). Dunn-Edwards argues that  EPA's cost estimate
was arbitrary and capricious, largely because  the agency reduced its
initial estimate after receiving cost estimates  submitted by
commenters without determining the reliability of  those estimates. In
fact, EPA did evaluate the reasonableness of  the comments, utilizing
data from only 11 out of 27 because the  others suffered from
incompleteness or lack of clarity, or from a  failure to provide cost
information on a per product basis. See  Background at 2-304 to 2-305
(J.A. at 444-45).


of Allied's argument is that EPA's regulation exceeds Con- gress'
authority under the Commerce Clause because there is  an insufficient
nexus between coatings manufacture, which it  describes as an
intrastate event, and the interstate phenome- non of ozone


Allied attempts to rely on the Supreme Court's decision in  United
States v. Lopez, 514 U.S. 549 (1995), striking down the  Gun-Free
School Zones Act25 which made it a federal crime  knowingly to possess
a firearm in a school zone. In United  States v. Morrison, 68 U.S.L.W.
4351 (U.S. May 15, 2000),  handed down last month, the Court relied on
Lopez in holding  that Congress also lacked authority under the
Commerce  Clause to provide a federal civil remedy for the victims of 
gender-motivated violence. In both cases, the Court agreed  that "
'Congress' commerce authority includes the power to  regulate those
activities having a substantial relation to inter- state commerce, ...
i.e., those activities that substantially  affect interstate
commerce.' " Id. at 4354 (quoting Lopez, 514  U.S. at 558-59). As
Morrison explained, however, four con- siderations contributed to
Lopez's conclusion that the Gun- Free School Zones Act did not fall
within that category of  regulatable activity. Not one of those
considerations applies  to section 183(e) of the Clean Air Act.


The Court held, first, that "in those cases where we have  sustained
federal regulation of intrastate activity based upon  the activity's
substantial effects on interstate commerce, the  activity in question
has been some sort of economic endeav- or." Id. at 4355 (citing Lopez,
514 U.S. at 559-60). Morrison  noted that the criminal statute at
issue in Lopez " 'had  nothing to do with "commerce" or any sort of
economic  enterprise, however broadly one might define those terms.' "
 Id. at 4354 (quoting Lopez, 514 U.S. at 561). It said that the  same
was true of the federal civil remedy provision of the  Violence
Against Women Act (VAWA).26 See id. at 4355.  But the same cannot be
said of the Clean Air Act provisions  concerning VOC emissions, which
permit regulation only of:




__________

n 25 18 U.S.C. s 922(q)(1)(A).


26 42 U.S.C. s 13981.


(i) manufacturers, processors, wholesale distributors, or  importers of
consumer or commercial products for sale  or distribution in
interstate commerce in the United  States; or


(ii) manufacturers, processors, wholesale distributors, or  importers
that supply the entities listed under clause (i)  with such products
for sale or distribution in interstate  commerce in the United


42 U.S.C. s 7511b(e)(1)(C).


Second, Morrison noted that in Lopez, the Gun-Free  School Zones Act,
like VAWA, "contained 'no express juris- dictional element which might
limit its reach to a discrete set  of firearm possessions that
additionally have an explicit con- nection with or effect on
interstate commerce.' " Morrison,  68 U.S.L.W. at 4355 (quoting Lopez,
514 U.S. at 562). As  quoted above, however, EPA's regulation of VOCs
is express- ly limited to entities that act "in interstate commerce."
42  U.S.C. s 7511b(e)(1)(C).


Third, Morrison pointed out that neither the Gun-Free  School Zones
Act, " 'nor its legislative history contain[s] ex- press congressional
findings regarding the effects upon inter- state commerce of gun
possession in a school zone.' " Id.  (quoting Lopez, 514 U.S. at 562).
The legislative history of  the Clean Air Act Amendments, by contrast,
expressly de- scribes the problem of interstate transport of ozone,
see, e.g.,  S. Rep. No. 101-228, at 3, 13, 49 (1989), as well as its
effects  on the national economy, see, e.g., id. at 8-9.


Finally, according to Morrison, the "decision in Lopez  rested in part
on the fact that the link between gun posses- sion and a substantial
effect on interstate commerce was  attenuated," Morrison, 68 U.S.L.W.
at 4355, which the Court  said was true of gender-motivated violence
as well, see id. at  4356. But, there is nothing attenuated about the
interstate  effects of the activity regulated here. We ourselves have 
noted the interstate nature of the "ozone transport phenome- non," and
the way in which it may render any given state  unable to achieve
attainment because of ozone created hun- dreds of miles away. See
Virginia v. EPA, 108 F.3d 1397,  1400 (D.C. Cir. 1997). The
legislative history and EPA's 


report to Congress substantiate the heavy impact ozone pollu- tion has
on national health care costs and national agricultur- al production.
See S. Rep. No. 101-228, at 8-9 (1989); Report  at 1-1 (J.A. at 518).
And the rulemaking record sustains the  proposition that the large
majority of the products regulated  by the rule are distributed
nationally, and then applied by  end-users in multiple locations, see
63 Fed. Reg. 48,792,  48,804--facts that are confirmed, and stressed,
by the Nation- al Paint & Coatings Association, see NPCA Br. at 24.


In short, none of the considerations that led the Court to  find
Congress' authority wanting in Lopez and Morrison has  any application
to section 183(e) of the Clean Air Act. In  Hodel v. Virginia Surface
Mining and Reclamation Ass'n--a  case cited with approval by the
Supreme Court in both Lopez  and Morrison, see Lopez, 514 U.S. at 557;
Morrison, 68  U.S.L.W. at 4354--the Court declared that it "agree[d]
with  the lower federal courts that have uniformly found the power 
conferred by the Commerce Clause broad enough to permit  congressional
regulation of activities causing air or water  pollution, or other
environmental hazards that may have  effects in more than one State."
452 U.S. 264, 282 (1981).  Contrary to Allied's assertion, nothing
contained in the  Court's recent Commerce Clause jurisprudence casts
doubt  on the validity of that declaration here.


VII


For the foregoing reasons, we reject petitioners' challenges  to the
architectural coatings rule and deny the petitions for  review.