Amer Trk Assn Inc v. EPA

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, 97-1598

_______

 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

---------

BEFORE: Williams, Ginsburg, and Tatel, Circuit
Judges.

O R D E R

This matter is before the court for consideration of respon-
dent Environmental Protection Agency's (EPA) petition for
panel rehearing in Nos 97-1440 and 97-1441, the responses
thereto, and the petitions for panel rehearing of intervenors-
respondents New Jersey and Massachusetts in Nos. 97-1440
and 97-1441, Citizen for Balanced Transportation, et al. in
No. 97-1440, and the American Lung Association in Nos.
97-1440 and 97-1441. Upon consideration of the foregoing, it
is

 ORDERED that the petitions of EPA, New Jersey and
Massachusetts, and the American Lung Association be grant-
ed in part. The court accordingly modifies Parts III.A.2 & .3
and the conclusion of the court's original opinion as set forth
in the opinion of the court filed herein this date. It is

FURTHER ORDERED that the remainder of EPA, New
Jersey and Massachusetts, and the American Lung Associa-
tion's petitions be denied and that Citizen for Balanced
Transportation's petition be denied.

Per Curiam

FOR THE COURT:

Mark J. Langer, Clerk

Date: October 29, 1999

Opinion per curiam on petitions for rehearing.

Opinion concurring in partial grant of rehearing and dissent-
ing in part from the panel's denial of rehearing filed by
Circuit Judge Tatel.

 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 rehearing in part
and deny it in part.

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 standards.

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

__________
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 be:

[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
__________
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"). To choose among permis-

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 intelligible
principle).3

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

__________
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 that

__________
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
jurisdiction to review.5

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. 1999).

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

__________
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 validly promulgated a revised standard.

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 following
sentence:

 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, 1999).

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 remand.

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. at 1057.

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 2:

[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 effective.

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 standards.

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, 97-1598

---------

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 matter.

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 the nondelegation

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 of the nondelega-
tion doctrine.

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

__________
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 agency's extensive procedures does not

__________
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
constitutional source.

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 banc:

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, e.g., [the Benzene case.]").

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 ability to delegate power under

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 Congress.

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 Benzene case.

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 (1990).

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, 97-1598

_______

No. 97-1441

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

v.

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

---------

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 a vote, it is

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.