OCTOBER TERM, 2000
certiorari to the united states court of appeals for the district of columbia circuit
No. 99-1257. Argued November 7, 2000—Decided February 27, 2001*
Section 109(a) of the Clean Air Act (CAA) requires the Environmental
Protection Agency (EPA) Administrator to promulgate national ambient air quality standards (NAAQS) for each air pollutant for which "air quality criteria" have been issued under § 108. Pursuant to § 109(d)(1), the Administrator in 1997 revised the ozone and particulate matter NAAQS. Respondents in No. 99-1257, private parties and several States (hereinafter respondents), challenged the revised NAAQS on several grounds. The District of Columbia Circuit found that, under the Administrator's interpretation, § 109(b)(1)—which instructs the EPA to set standards "the attainment and maintenance of which . . . are requisite to protect the public health" with "an adequate margin of safety"—delegated legislative power to the Administrator in contravention of the Federal Constitution, and it remanded the NAAQS to the EPA. The Court of Appeals also declined to depart from its rule that the EPA may not consider implementation costs in setting the NAAQS. And it held that, although certain implementation provisions for the ozone NAAQS contained in Part D, Subpart 2, of Title I of the CAA did not prevent the EPA from revising the ozone standard and designating certain areas as "nonattainment areas," those provisions, rather than more general provisions contained in Subpart 1, constrained the implementation of the new ozone NAAQS. The court rejected the EPA's argument that it lacked jurisdiction to reach the implementation question because there had been no "final" implementation action.
1. Section 109(b) does not permit the Administrator to consider implementation costs in setting NAAQS. Because the CAA often expressly grants the EPA the authority to consider implementation costs, a provision for costs will not be inferred from its ambiguous provisions. Union Elec. Co. v. EPA, 427 U. S. 246, 257, and n. 5. And since
*Together with No. 99-1426, American Trucking Associations, Inc., et al. v. Whitman, Administrator of Environmental Protection Agency, et al., also on certiorari to the same court.
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