175 F.3d 1027 and 195 F.3d 4, affirmed in part, reversed in part, and remanded.
[February 27, 2001] Justice Scalia delivered the opinion of the Court.
so, whether the EPAs interpretation of that part was permissible.
as may be appropriate. CAA §109(d)(1), 42 U.S.C. § 7409(d)(1). These cases arose when, on July 18, 1997, the Administrator revised the NAAQS for particulate matter (PM) and ozone. See NAAQS for Particulate Matter, 62 Fed. Reg. 38652 (codified in 40 CFR § 50.7 (1999)); NAAQS for Ozone, id., at 38856 (codified in 40 CFR §§50.9, 50.10 (1999)). American Trucking Associations, Inc., and its co-respondents in No. 991257which include, in addition to other private companies, the States of Michigan, Ohio, and West Virginiachallenged the new standards in the Court of Appeals for the District of Columbia Circuit, pursuant to 42 U.S.C. § 7607(b)(1).
991257 respondents (hereinafter respondents) that §109(b)(1) delegated legislative power to the Administrator in contravention of the United States Constitution, Art. I, §1, because it found that the EPA had interpreted the statute to provide no intelligible principle to guide the agencys exercise of authority. American Trucking Assns., Inc. v. EPA, 175 F.3d 1027, 1034 (1999). The court thought, however, that the EPA could perhaps avoid the unconstitutional delegation by adopting a restrictive construction of §109(b)(1), so instead of declaring the section unconstitutional the court remanded the NAAQS to the agency. Id., at 1038. (On this delegation point, Judge Tatel dissented, finding the statute constitutional as written. Id., at 1057.) On the second issue that the Court of Appeals addressed, it unanimously rejected respondents argument that the court should depart from the rule of Lead Industries Assn., Inc. v. EPA, 647 F.2d 1130, 1148 (CADC 1980), that the EPA may not consider the cost of implementing a NAAQS in setting the initial standard. It also rejected respondents argument that the implementation provisions for ozone found in Part D, Subpart 2, of Title I of the CAA, 42 U.S.C. § 75117511f, were so tied to the existing ozone standard that the EPA lacked the power to revise the standard. The court held that although Subpart 2 constrained the agencys method of implementing the new standard, 175 F.3d, at 1050, it did not prevent the EPA from revising the standard and designating areas of the country as nonattainment areas, see 42 U.S.C. § 7407(d)(1), by reference to it, 175 F.3d, at 10471048. On the EPAs petition for rehearing, the panel adhered to its position on these points, and unanimously rejected the EPAs new argument that the court lacked jurisdiction to reach the implementation question because there had been no final implementation action. American Trucking Assns., Inc. v. EPA, 195 F.3d 4 (CADC 1999). The Court of Appeals denied the EPAs suggestion for rehearing en banc, with five judges dissenting. Id., at 13.
The Administrator and the EPA petitioned this Court for review of the first, third, and fourth questions described in the first paragraph of this opinion. Respondents conditionally cross-petitioned for review of the second question. We granted certiorari on both petitions, 529 U.S. 1129 (2000); 530 U.S. 1202 (2000), and scheduled the cases for argument in tandem. We have now consolidated the cases for purposes of decision.
In Lead Industries Assn., Inc. v. EPA, supra, at 1148, the District of Columbia Circuit held that economic considerations [may] play no part in the promulgation of ambient air quality standards under Section 109 of the CAA. In the present cases, the court adhered to that holding, 175 F.3d, at 10401041, as it had done on many other occasions. See, e.g., American Lung Assn. v. EPA, 134 F.3d 388, 389 (1998); NRDC v. Administrator, EPA, 902 F.2d 962, 973 (1990), vacated in part on other grounds, NRDC v. EPA, 921 F.2d 326 (CADC 1991); American Petroleum Institute v. Costle, 665 F.2d 1176, 1185 (1981). Respondents argue that these decisions are incorrect. We disagree; and since the first step in assessing whether a statute delegates legislative power is to determine what authority the statute confers, we address that issue of interpretation first and reach respondents constitutional arguments in Part III, infra.
Against this most natural of readings, respondents make a lengthy, spirited, but ultimately unsuccessful attack. They begin with the object of §109(b)(1)s focus, the public health. When the term first appeared in federal clean air legislationin the Act of July 14, 1955 (1955 Act), 69 Stat. 322, which expressed recognition of the dangers to the public health from air pollutionits ordinary meaning was [t]he health of the community. Websters New International Dictionary 2005 (2d ed. 1950). Respondents argue, however, that §109(b)(1), as added by the Clean Air Amendments of 1970 (1970 Act), 84 Stat. 1676, meant to use the terms secondary meaning: [t]he ways and means of conserving the health of the members of a community, as by preventive medicine, organized care of the sick, etc. Ibid. Words that can have more than one meaning are given content, however, by their surroundings, FDA v. Brown & Williamson Tobacco Corp., 529 U.S. 120, 132133 (2000); Jones v. United States, 527 U.S. 373, 389 (1999), and in the context of §109(b)(1) this second definition makes no sense. Congress could not have meant to instruct the Administrator to set NAAQS at a level requisite to protect the art and science dealing with the protection and improvement of community health. Websters Third New International Dictionary 1836 (1981). We therefore revert to the primary definition of the term: the health of the public.
taking into consideration the cost of achieving such emissions reductions); §7547(a)(3) (emission reduction for nonroad vehicles to be set giving appropriate consideration to the cost of the standards). We have therefore refused to find implicit in ambiguous sections of the CAA an authorization to consider costs that has elsewhere, and so often, been expressly granted. See Union Elec. Co. v. EPA, 427 U.S. 246, 257, and n. 5 (1976). Cf. General Motors Corp. v. United States, 496 U.S. 530, 538, 541 (1990) (refusing to infer in certain provisions of the CAA deadlines and enforcement limitations that had been expressly imposed elsewhere).
Accordingly, to prevail in their present challenge, respondents must show a textual commitment of authority to the EPA to consider costs in setting NAAQS under §109(b)(1). And because §109(b)(1) and the NAAQS for which it provides are the engine that drives nearly all of Title I of the CAA, 42 U.S.C. § 74017515, that textual commitment must be a clear one. Congress, we have held, does not alter the fundamental details of a regulatory scheme in vague terms or ancillary provisionsit does not, one might say, hide elephants in mouseholes. See MCI Telecommunications Corp. v. American Telephone & Telegraph Co., 512 U.S. 218, 231 (1994); FDA v. Brown & Williamson Tobacco Corp., supra, at 159160. Respondents textual arguments ultimately founder upon this principle.
The same defect inheres in respondents next two arguments: that while the Administrators judgment about what is requisite to protect the public health must be based on [the] criteria documents developed under §108(a)(2), see §109(b)(1), it need not be based solely on those criteria; and that those criteria themselves, while they must include effects on public health or welfare which may be expected from the presence of such pollutant in the ambient air, are not necessarily limited to those effects. Even if we were to concede those premises, we still would not conclude that one of the unenumerated factors that the agency can consider in developing and applying the criteria is cost of implementation. That factor is both so indirectly related to public health and so full of potential for canceling the conclusions drawn from direct health effects that it would surely have been expressly mentioned in §§108 and 109 had Congress meant it to be considered. Yet while those provisions describe in detail how the health effects of pollutants in the ambient air are to be calculated and given effect, see §108(a)(2), they say not a word about costs.
It should be clear from what we have said that the canon requiring texts to be so construed as to avoid serious constitutional problems has no application here. No matter how severe the constitutional doubt, courts may choose only between reasonably available interpretations of a text. See, e.g., Miller v. French, 530 U.S. 327, 341 (2000); Pennsylvania Dept. of Corrections v. Yeskey, 524 U.S. 206, 212 (1998). The text of §109(b), interpreted in its statutory and historical context and with appreciation for its importance to the CAA as a whole, unambiguously bars cost considerations from the NAAQS-setting process, and thus ends the matter for us as well as the EPA.4 We therefore affirm the judgment of the Court of Appeals on this point.
Section 109(b)(1) of the CAA instructs the EPA to set ambient air quality standards the attainment and maintenance of which in the judgment of the Administrator, based on [the] criteria [documents of §108] and allowing an adequate margin of safety, are requisite to protect the public health. 42 U.S.C. § 7409(b)(1). The Court of Appeals held that this section as interpreted by the Administrator did not provide an intelligible principle to guide the EPAs exercise of authority in setting NAAQS. [The] EPA, it said, lack[ed] any determinate criteria for drawing lines. It has failed to state intelligibly how much is too much. 175 F.3d, at 1034. The court hence found that the EPAs interpretation (but not the statute itself) violated the nondelegation doctrine. Id., at 1038. We disagree.
in a Congress of the United States. This text permits no delegation of those powers, Loving v. United States, 517 U.S. 748, 771 (1996); see id., at 776777 (Scalia, J., concurring in part and concurring in judgment), and so we repeatedly have said that when Congress confers decisionmaking authority upon agencies Congress must lay down by legislative act an intelligible principle to which the person or body authorized to [act] is directed to conform. J. W. Hampton, Jr., & Co. v. United States, 276 U.S. 394, 409 (1928). We have never suggested that an agency can cure an unlawful delegation of legislative power by adopting in its discretion a limiting construction of the statute. Both Fahey v. Mallonee, 332 U.S. 245, 252253 (1947), and Lichter v. United States, 334 U.S. 742, 783 (1948), mention agency regulations in the course of their nondelegation discussions, but Lichter did so because a subsequent Congress had incorporated the regulations into a revised version of the statute, ibid., and Fahey because the customary practices in the area, implicitly incorporated into the statute, were reflected in the regulations. 332 U.S., at 250. The idea that an agency can cure an unconstitutionally standardless delegation of power by declining to exercise some of that power seems to us internally contradictory. The very choice of which portion of the power to exercisethat is to say, the prescription of the standard that Congress had omittedwould itself be an exercise of the forbidden legislative authority. Whether the statute delegates legislative power is a question for the courts, and an agencys voluntary self-denial has no bearing upon the answer.
We agree with the Solicitor General that the text of §109(b)(1) of the CAA at a minimum requires that [f]or a discrete set of pollutants and based on published air quality criteria that reflect the latest scientific knowledge, [the] EPA must establish uniform national standards at a level that is requisite to protect public health from the adverse effects of the pollutant in the ambient air. Tr. of Oral Arg. in No. 991257, p. 5. Requisite, in turn, mean[s] sufficient, but not more than necessary. Id., at 7. These limits on the EPAs discretion are strikingly similar to the ones we approved in Touby v. United States, 500 U.S. 160 (1991), which permitted the Attorney General to designate a drug as a controlled substance for purposes of criminal drug enforcement if doing so was  necessary to avoid an imminent hazard to the public safety.  Id., at 163. They also resemble the Occupational Safety and Health Act provision requiring the agency to  set the standard which most adequately assures, to the extent feasible, on the basis of the best available evidence, that no employee will suffer any impairment of health which the Court upheld in Industrial Union Dept., AFLCIO v. American Petroleum Institute, 448 U.S. 607, 646 (1980), and which even then-Justice Rehnquist, who alone in that case thought the statute violated the nondelegation doctrine, see id., at 671 (opinion concurring in judgment), would have upheld if, like the statute here, it did not permit economic costs to be considered. See American Textile Mfrs. Institute, Inc. v. Donovan, 452 U.S. 490, 545 (1981) (Rehnquist, J., dissenting).
The scope of discretion §109(b)(1) allows is in fact well within the outer limits of our nondelegation precedents. In the history of the Court we have found the requisite intelligible principle lacking in only two statutes, one of which provided literally no guidance for the exercise of discretion, and the other of which conferred authority to regulate the entire economy on the basis of no more precise a standard than stimulating the economy by assuring fair competition. See Panama Refining Co. v. Ryan, 293 U.S. 388 (1935); A. L. A. Schechter Poultry Corp. v. United States, 295 U.S. 495 (1935). We have, on the other hand, upheld the validity of §11(b)(2) of the Public Utility Holding Company Act of 1935, 49 Stat. 821, which gave the Securities and Exchange Commission authority to modify the structure of holding company systems so as to ensure that they are not unduly or unnecessarily complicate[d] and do not unfairly or inequitably distribute voting power among security holders. American Power & Light Co. v. SEC, 329 U.S. 90, 104 (1946). We have approved the wartime conferral of agency power to fix the prices of commodities at a level that  will be generally fair and equitable and will effectuate the [in some respects conflicting] purposes of th[e] Act.  Yakus v. United States, 321 U.S. 414, 420, 423426 (1944). And we have found an intelligible principle in various statutes authorizing regulation in the public interest. See, e.g., National Broadcasting Co. v. United States, 319 U.S. 190, 225226 (1943) (FCCs power to regulate airwaves); New York Central Securities Corp. v. United States, 287 U.S. 12, 2425 (1932) (ICCs power to approve railroad consolidations). In short, we have almost never felt qualified to second-guess Congress regarding the permissible degree of policy judgment that can be left to those executing or applying the law. Mistretta v. United States, 488 U.S. 361, 416 (1989) (Scalia, J., dissenting); see id., at 373 (majority opinion).
It is true enough that the degree of agency discretion that is acceptable varies according to the scope of the power congressionally conferred. See Loving v. United States, supra, at 772773; United States v. Mazurie, 419 U.S. 544, 556557 (1975). While Congress need not provide any direction to the EPA regarding the manner in which it is to define country elevators, which are to be exempt from new-stationary-source regulations governing grain elevators, see §7411(i), it must provide substantial guidance on setting air standards that affect the entire national economy. But even in sweeping regulatory schemes we have never demanded, as the Court of Appeals did here, that statutes provide a determinate criterion for saying how much [of the regulated harm] is too much. 175 F.3d, at 1034. In Touby, for example, we did not require the statute to decree how imminent was too imminent, or how necessary was necessary enough, or evenmost relevant herehow hazardous was too hazardous. 500 U.S., at 165167. Similarly, the statute at issue in Lichter authorized agencies to recoup excess profits paid under wartime Government contracts, yet we did not insist that Congress specify how much profit was too much. 334 U.S., at 783786. It is therefore not conclusive for delegation purposes that, as respondents argue, ozone and particulate matter are nonthreshold pollutants that inflict a continuum of adverse health effects at any airborne concentration greater than zero, and hence require the EPA to make judgments of degree. [A] certain degree of discretion, and thus of lawmaking, inheres in most executive or judicial action. Mistretta v. United States, supra, at 417 (Scalia, J., dissenting) (emphasis deleted); see 488 U.S., at 378379 (majority opinion). Section 109(b)(1) of the CAA, which to repeat we interpret as requiring the EPA to set air quality standards at the level that is requisitethat is, not lower or higher than is necessaryto protect the public health with an adequate margin of safety, fits comfortably within the scope of discretion permitted by our precedent.
We therefore reverse the judgment of the Court of Appeals remanding for reinterpretation that would avoid a supposed delegation of legislative power. It will remain for the Court of Appealson the remand that we direct for other reasonsto dispose of any other preserved challenge to the NAAQS under the judicial-review provisions contained in 42 U.S.C. § 7607(d)(9).
The final two issues on which we granted certiorari concern the EPAs authority to implement the revised ozone NAAQS in areas whose ozone levels currently exceed the maximum level permitted by that standard. The CAA designates such areas nonattainment, §107(d)(1), 42 U.S.C. § 7407(d)(1); see also Pub. L. 105178, §6103, 112 Stat. 465 (setting timeline for new ozone designations), and it exposes them to additional restrictions over and above the implementation requirements imposed generally by §110 of the CAA. These additional restrictions are found in the five substantive subparts of Part D of Title I, 42 U.S.C. § 75017515. Subpart 1, §§75017509a, contains general nonattainment regulations that pertain to every pollutant for which a NAAQS exists. Subparts 2 through 5, §§75117514a, contain rules tailored to specific individual pollutants. Subpart 2, added by the Clean Air Act Amendments of 1990, §103, 104 Stat. 2423, addresses ozone. 42 U.S.C. § 75117511f. The dispute before us here, in a nutshell, is whether Subpart 1 alone (as the agency determined), or rather Subpart 2 or some combination of Subparts 1 and 2, controls the implementation of the revised ozone NAAQS in nonattainment areas.
nationally applicable regulations promulgated, or final action taken, by the Administrator, but the EPA argues that its implementation policy was not agency action, was not final action, and is not ripe for review. We reject each of these three contentions.
subpart 1). Moreover, the provisions of subpart 2 will [also] continue to apply as a matter of law for so long as an area is not attaining the [old] 1-hour standard. Id., at 38873. Once the area reaches attainment for the old standard, however, the provisions of subpart 2 will have been achieved and those provisions will no longer apply. Ibid.; see also id., at 3888438885.
We have little trouble concluding that this constitutes final agency action subject to review under §307. The bite in the phrase final action (which bears the same meaning in §307(b)(1) that it does under the Administrative Procedure Act (APA) 5 U.S.C. § 704 see Harrison v. PPG Industries, Inc., 446 U.S. 578, 586 (1980)) is not in the word action, which is meant to cover comprehensively every manner in which an agency may exercise its power. See FTC v. Standard Oil Co. of Cal., 449 U.S. 232, 238, n. 7 (1980). It is rather in the word final, which requires that the action under review mark the consummation of the agencys decisionmaking process. Bennett v. Spear, 520 U.S. 154, 177178 (1997). Only if the EPA has rendered its last word on the matter in question, Harrison v. PPG Industries, Inc., supra, at 586, is its action final and thus reviewable. That standard is satisfied here. The EPAs decisionmaking process, which began with the 1996 proposal and continued with the reception of public comments, concluded when the agency, in light of [these comments], and in conjunction with a corresponding directive from the White House, adopted the interpretation of Part D at issue here. Since that interpretation issued, the EPA has refused in subsequent rulemakings to reconsider it, explaining to disappointed commenters that its earlier decision was conclusive. See 63 Fed. Reg. 31014, 3101831019 (1998). Though the agency has not dressed its decision with the conventional procedural accoutrements of finality, its own behavior thus belies the claim that its interpretation is not final.
The decision is also ripe for our review. Ripeness requir[es] us to evaluate both the fitness of the issues for judicial decision and the hardship to the parties of withholding court consideration.  Texas v. United States, 523 U.S. 296, 300301 (1998) (quoting Abbott Laboratories v. Gardner, 387 U.S. 136, 149 (1967)). The question before us here is purely one of statutory interpretation that would not benefit from further factual development of the issues presented. Ohio Forestry Assn., Inc. v. Sierra Club, 523 U.S. 726, 733 (1998). Nor will our review inappropriately interfere with further administrative action, ibid., since the EPA has concluded its consideration of the implementation issue. Finally, as for hardship to the parties: The respondent States muston pain of forfeiting to the EPA control over implementation of the NAAQSpromptly undertake the lengthy and expensive task of developing state implementation plans (SIPs) that will attain the new, more stringent standard within five years. See 42 U.S.C. § 7410 7502. Whether or not this would suffice in an ordinary case brought under the review provisions of the APA, see 5 U.S.C. § 704 we have characterized the special judicial-review provision of the CAA, 42 U.S.C. § 7607(b), as one of those statutes that specifically provides for preenforcement review, see Ohio Forestry Assn., Inc. v. Sierra Club, supra, at 737. Such statutes, we have said, permit judicial review directly, even before the concrete effects normally required for APA review are felt. Lujan v. National Wildlife Federation, 497 U.S. 871, 891 (1990). The effects at issue here surely meet that lower standard.
including nonattainment areas for any revised ozone standard. Final Brief for EPA in No. 971441 (and consolidated cases) (CADC), pp. 6768. The agency later reiterated that Subpart 2 does not supplant implementation provisions for revised ozone standards. This interpretation fully harmonizes Subpart 2 with EPAs clear authority to revise any NAAQS. Id., at 71. In other words, the EPA was arguing that the revised standard could be issued, despite its apparent incompatibility with portions of Subpart 2, because it would be implemented under Subpart 1 rather than Subpart 2. The District of Columbia Circuit ultimately agreed that Subpart 2 could be harmonized with the EPAs authority to promulgate revised NAAQS, but not because Subpart 2 is entirely inapplicablewhich is one of EPAs assignments of error. It is unreasonable to contend, as the EPA now does, that the Court of Appeals was obligated to reach the agencys preferred result, but forbidden to assess the reasons the EPA had given for reaching that result. The implementation issue was fairly included within respondents challenge to the ozone rule, which all parties agree is final agency action ripe for review.
Our approach to the merits of the parties dispute is the familiar one of Chevron U.S. A. Inc. v. Natural Resources Defense Council, Inc., 467 U.S. 837 (1984). If the statute resolves the question whether Subpart 1 or Subpart 2 (or some combination of the two) shall apply to revised ozone NAAQS, then that is the end of the matter. Id., at 842843. But if the statute is silent or ambiguous with respect to the issue, then we must defer to a reasonable interpretation made by the administrator of an agency. Id., at 844. We cannot agree with the Court of Appeals that Subpart 2 clearly controls the implementation of revised ozone NAAQS, see 175 F.3d, at 10481050, because we find the statute to some extent ambiguous. We conclude, however, that the agencys interpretation goes beyond the limits of what is ambiguous and contradicts what in our view is quite clear. We therefore hold the implementation policy unlawful. See AT&T Corp. v. Iowa Utilities Bd., 525 U.S. 366, 392 (1999).
The text of Subpart 1 at first seems to point the way to a clear answer to the question, which Subpart controls? Two sections of Subpart 1, 7502(a)(1)(C) and 7502(a)(2)(D), contain switching provisions stating that if the classification of ozone nonattainment areas is specifically provided [for] under other provisions of [Part D], then those provisions will control instead of Subpart 1s. Thus it is true but incomplete to note, as the Administrator does, that the substantive language of Subpart 1 is broad enough to apply to revised ozone standards. See, e.g., §7502(a)(1)(A) (instructing the Administrator to classify nonattainment areas according to any revised standard, including a revision of any standard in effect on November 15, 1990); §7502(a)(2)(A) (setting attainment deadlines). To determine whether that language does apply one must resolve the further textual issue whether some other provision, namely Subpart 2, provides for the classification of ozone nonattainment areas. If it does, then according to the switching provisions of Subpart 1 it will control.
shall be classified at the time of such designation, under table 1, by operation of law. And once an area has been classified, the primary standard attainment date for ozone shall be as expeditiously as practicable but not later than the date provided in table 1. The EPA argues that this text is not as clear or comprehensive as it seems, because the title of §7511(a) reads Classification and attainment dates for 1989 nonattainment areas, which suggests that Subpart 2 applies only to areas that were in nonattainment in 1989, and not to areas later designated nonattainment under a revised ozone standard. The suggestion must be rejected, however, because §7511(b)(1) specifically provides for the classification of areas that were in attainment in 1989 but have subsequently slipped into nonattainment. It thus makes clear that Subpart 2 is not limited solely to 1989 nonattainment areas. This eliminates the interpretive role of the title, which may only she[d] light on some ambiguous word or phrase in the statute itself, Carter v. United States, 530 U.S. 255, 267 (2000) (internal quotation marks omitted) (quoting Pennsylvania Dept. of Corrections v. Yeskey, 524 U.S., at 212, in turn quoting Trainmen v. Baltimore & Ohio R. Co., 331 U.S. 519, 528529 (1947)).
It may well be, as the EPA arguesand as the concurring opinion below on denial of rehearing pointed out, see 195 F.3d, at 1112that some provisions of Subpart 2 are ill fitted to implementation of the revised standard. Using the old 1-hour averages of ozone levels, for example, as Subpart 2 requires, see §7511(a)(1); 44 Fed. Reg. 8202 (1979), would produce at best an inexact estimate of the new 8-hour averages, see 40 CFR § 50.10 and App. I (1999). Also, to the extent that the new ozone standard is stricter than the old one, see Reply Brief for Petitioners in No. 991257, p. 17 (the stricter 8-hour NAAQS); 62 Fed. Reg. 38856, 38858 (1997) (8-hour standard of 0.09 ppm rather than 0.08 ppm would have generally represent[ed] the continuation of the [old] level of protection), the classification system of Subpart 2 contains a gap, because it fails to classify areas whose ozone levels are greater than the new standard (and thus nonattaining) but less than the approximation of the old standard codified by Table 1. And finally, Subpart 2s method for calculating attainment dateswhich is simply to count forward a certain number of years from November 15, 1990 (the date the 1990 CAA Amendments took force), depending on how far out of attainment the area startedseems to make no sense for areas that are first classified under a new standard after November 15, 1990. If, for example, areas were classified in the year 2000, many of the deadlines would already have expired at the time of classification.
These gaps in Subpart 2s scheme prevent us from concluding that Congress clearly intended Subpart 2 to be the exclusive, permanent means of enforcing a revised ozone standard in nonattainment areas. The statute is in our view ambiguous concerning the manner in which Subpart 1 and Subpart 2 interact with regard to revised ozone standards, and we would defer to the EPAs reasonable resolution of that ambiguity. See FDA v. Brown & Williamson Tobacco Corp., 529 U.S., at 132; INS v. Aguirre-Aguirre, 526 U.S. 415, 424 (1999). We cannot defer, however, to the interpretation the EPA has given.
would apply to the implementation of the new 8-hour ozone standards). To use a few apparent gaps in Subpart 2 to render its textually explicit applicability to nonattainment areas under the new standard utterly inoperative is to go over the edge of reasonable interpretation. The EPA may not construe the statute in a way that completely nullifies textually applicable provisions meant to limit its discretion.
The EPAs interpretation making Subpart 2 abruptly obsolete is all the more astonishing because Subpart 2 was obviously written to govern implementation for some time. Some of the elements required to be included in SIPs under Subpart 2 were not to take effect until many years after the passage of the Act. See §7511a(e)(3) (restrictions on electric utility and industrial and commercial boiler[s] to be effective 8 years after November 15, 1990); §7511a(c)(5)(A) (vehicle monitoring program to [b]egi[n] 6 years after November 15, 1990); §7511a(g)(1) (emissions milestone requirements to be applied 6 years after November 15, 1990, and at intervals of every 3 years thereafter). A plan reaching so far into the future was not enacted to be abandoned the next time the EPA reviewed the ozone standardwhich Congress knew could happen at any time, since the technical staff papers had already been completed in late 1989. See 58 Fed. Reg. 13008, 13010 (1993); see also 42 U.S.C. § 7409(d)(1) (NAAQS must be reviewed and, if appropriate, revised at least once every five years). Yet nothing in the EPAs interpretation would have prevented the agency from aborting Subpart 2 the day after it was enacted. Even now, if the EPAs interpretation were correct, some areas of the country could be required to meet the new, more stringent ozone standard in at most the same time that Subpart 2 had allowed them to meet the old standard. Compare §7502(a)(2) (Subpart 1 attainment dates) with §7511(a) (Subpart 2 attainment dates). Los Angeles, for instance, would be required to attain the revised NAAQS under Subpart 1 no later than the same year that marks the outer time limit for attaining Subpart 2s one-hour ozone standard. Brief for Petitioners in No. 991257, p. 49. An interpretation of Subpart 2 so at odds with its structure and manifest purpose cannot be sustained.
We therefore find the EPAs implementation policy to be unlawful, though not in the precise respect determined by the Court of Appeals. After our remand, and the Court of Appeals final disposition of this case, it is left to the EPA to develop a reasonable interpretation of the nonattainment implementation provisions insofar as they apply to revised ozone NAAQS.
To summarize our holdings in these unusually complex cases: (1) The EPA may not consider implementation costs in setting primary and secondary NAAQS under §109(b) of the CAA. (2) Section 109(b)(1) does not delegate legislative power to the EPA in contravention of Art. I, §1, of the Constitution. (3) The Court of Appeals had jurisdiction to review the EPAs interpretation of Part D of Title I of the CAA, relating to the implementation of the revised ozone NAAQS. (4) The EPAs interpretation of that Part is unreasonable.
1. None of the sections of the CAA in which the District of Columbia Circuit has found authority for the EPA to consider costs shares §109(b)(1)s prominence in the overall statutory scheme. See, e.g., Michigan v. EPA, 213 F.3d 663, 678679 (CADC 2000); George E. Warren Corp. v. EPA, 159 F.3d 616, 623624 (CADC 1998); Natural Resources Defense Council, Inc. v. EPA, 824 F.2d 1146, 11541168 (CADC 1987) (en banc).
effects from various attainment strategies is unquestionably pertinent; but to say that Committee-generated cost data are pertinent is to beg the question. Likewise, while all written comments must be placed in the docket, §7607(d)(4)(B)(i), the EPA need respond only to the significant ones, §7407(d)(6)(B); comments regarding cost data are not significant if cost data are irrelevant.
3. Respondents scarcely mention in their arguments the secondary NAAQS required by §109(b)(2), 42 U.S.C. § 7409(b)(2). For many of the same reasons described in the body of the opinion, as well as the text of §109(b)(2), which instructs the EPA to set the standards at a level requisite to protect the public welfare from any known or anticipated adverse effects associated with the presence of such air pollutant in the ambient air (emphasis added), we conclude that the EPA may not consider implementation costs in setting the secondary NAAQS.
4. Respondents speculation that the EPA is secretly considering the costs of attainment without telling anyone is irrelevant to our interpretive inquiry. If such an allegation could be proved, it would be grounds for vacating the NAAQS, because the Administrator had not followed the law. See, e.g., Chevron U.S. A. Inc. v. Natural Resources Defense Council, Inc., 467 U.S. 837, 842843 (1984); Atlantic Mut. Ins. Co. v. Commissioner, 523 U.S. 382, 387 (1998). It would not, however, be grounds for this Courts changing the law.
5. TABLE I Primary standard Area class Design value* attainment date** Marginal 0.121 up to 0.138 3 years after November 15, 1990 Moderate 0.138 up to 0.160 6 years after November 15, 1990 Serious 0.160 up to 0.180 9 years after November 15, 1990 Severe 0.180 up to 0.280 15 years after November 15, 1990 Extreme 0.280 and above 20 years after November 15, 1990 *The design value is measured in parts per million (ppm). **The primary standard attainment date is measured from November 15, 1990.


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J. Schrauwen, D. Van Thourhout, R. Baets, Iodine enhanced focused-ion-beam etching of silicon for photonic applications, Journal of applied physics, 102, p.103104 (2007) .
J. Schrauwen, F. Van Laere, D. Van Thourhout, R. Baets, Focused-ion-beam fabrication of slanted grating couplers in silicon-on-insulator waveguides, Photonics Technology Letters, 19(11), p.816-818 (2007) .
S.-P. Gorza, D. Taillaert, R. Baets, B. Maes, Ph. Emplit, M. Haelterman, Experimental characterization of optical-gap solitons in a one-dimensional photonic crystal made of a corrugated semiconductor planar waveguide, Physical Review B, 74, p.235327 (2006) .
H. Desmet, K. Neyts, R. Baets, Modeling nematic liquid crystals in the neighborhood of edges, Journal of Applied Physics, 98(12), p.123517 (2005).
W. Bogaerts, P. Dumon, D. Taillaert, V. Wiaux, S. Beckx, B. Luyssaert, J. Van Campenhout, D. Van Thourhout, R. Baets, SOI Nanophotonic Waveguide Structures Fabricated with Deep UV Lithography , Photonics and Nanostructures: Fundamentals and Applications (invited), 2(2), p.81-86 (2004) .
D. Taillaert, H. Chong, P. Borel, L. Frandsen, R.M. De La Rue, R. Baets, A compact two-dimensional grating coupler used as a polarization splitter, IEEE Photonics Technology Letters, 15(9), p.1249-1251 (2003) .
G. Morthier, B. Moeyersoon, Intensity Noise and Linewidth of Laser Diodes with Integrated Semiconductor Optical Amplifier, IEEE Photonics Technology Letters, 14(12), p.1644-1646 (2002) .
S.-P. Gorza, C. Cambournac, Ph. Emplit, M. Haelterman, D. Taillaert, B. Maes, R. Baets, Identification of gap soliton through phase measurement, Proceedings of OSA Topical Meetings : Nonlinear Guided Waves and Their Applications (NLGW 05), Germany, p.TuC4 (2005) .
P. Dumon, W. Bogaerts, D. Van Thourhout, D. Taillaert, V. Wiaux, S. Beckx, J. Wouters, R. Baets, Cascaded Mach-Zehnder Filters in Silicon-on-Insulator Photonic Wires fabricated with deep UV lithography, European Conference on Optical Communication (ECOC) 2004, Th.(Post-deadline), Sweden, p.24-25 (2004) .
B. Luyssaert, P. Vandersteegen, W. Bogaerts, P. Dumon, P. Sanchis, J. Marti, R. Baets, A Versatile Optical Spot-Size Converter Design, European Conference on Optical Communication (ECOC) 2004, We(3), Sweden, p.468-469 (2004) .
P. Dumon, W. Bogaerts, J. Van Campenhout, V. Wiaux, J. Wouters, S. Beckx, R. Baets, Low-loss photonic wires and compact ring resonators in Silicon-on-insulator, SPIE International Symposium Photonics Europe, France, (2004).
R. Baets, W. Bogaerts, Nanophotonic waveguides in SOI by means of deep UV lithography, Photonic and Electromagnetic Crystal Structures (PECS-V) (invited), Japan, p.160 (2004) .
B. Luyssaert, P. Vandersteegen, W. Bogaerts, V. Wiaux, J. Wouters, S. Beckx, R. Baets, Compact Photonic Spot-Size Converter, Photonic and Electromagnetic Crystal Structures (PECS-V), Japan, p.193 (2004).
P. Dumon, W. Bogaerts, J. Van Campenhout, V. Wiaux, J. Wouters, S. Beckx, R. Baets, Low-loss photonic wires and compact ring resonators in silicon-on-insulator, LEOS Benelux Annual Symposium 2003, Netherlands, (2003) .
D. Taillaert, W. Bogaerts, R. Baets, Efficient coupling between submicron SOI-waveguides and single-mode fibers, IEEE/Leos Benelux Annual Symposium 2003, Netherlands, p.289-292 (2003).
W. Bogaerts, P. Dumon, V. Wiaux, J. Wouters, S. Beckx, R. Baets, Tolerance control for photonic crystal structures fabricated with deep UV lithography, ECOC 2003, 5, Italy, p.46-47 (2003) .
H. Desmet, W. Bogaerts, A. Adamski, J. Beeckman, K. Neyts, R. Baets, Silicon-on-insulator optical waveguides with liquid crystal cladding for switching and tuning, ECOC 2003, 3, Italy, p.430-431 (2003) .
W. Bogaerts, V. Wiaux, P. Dumon, D. Taillaert, J. Wouters, S. Beckx, J. Van Campenhout, B. Luyssaert, D. Van Thourhout, R. Baets, Large-scale production techniques for photonic nanostructures, Proc. SPIE (invited), 5225, United States, p.101-112 (2003) .
W. Bogaerts, V. Wiaux, D. Taillaert, S. Beckx, R. Baets, SOI Photonic Crystal components fabricated with deep UV lithography, PECS-IV, United States, p.40 (2002) .
W. Bogaerts, V. Wiaux, D. Taillaert, S. Beckx, R. Baets, Photonic Crystal Waveguides in SOI fabricated with deep UV lithography, European Conference on Optical Communication ECOC 2002, Denmark, p.4.4.5 (2002) .
R. Baets, Managing out-of-plane coupling 2D crystals, Workshop and EOS Topical meeting -Two Dimensional Photonic Crystals (invited), Switzerland, (2002).
W. Bogaerts, D. Taillaert, R. Baets, V. Wiaux, S. Beckx, Deep UV lithography for mass-manufacturing photonic crystal based components, Workshop 2D photonic crystals, Switzerland, p.III-24 (2002).
W. Bogaerts, D. Taillaert, R. Baets, V. Wiaux, S. Beckx, Large-scale production techniques for photonic nanostructures using excimer laser replication, Integrated Photonics Research (IPR) (invited), Canada, (2002) .
R. Baets, Towards nanophotonic integrated circuits: the challenges, Conference on Optoelectronics and Optical Communications (COOC 2002) (invited), 9(1), p.3-4 (2002).
W. Bogaerts, P. Dumon, V. Wiaux, J. Wouters, S. Beckx, D. Taillaert, B. Luyssaert, J. Van Campenhout, D. Van Thourhout, R. Baets, Nanophotonic waveguides in Silicon-on-Insulator Fabricated with CMOS Technology, 1st Flanders Engineering PhD Symposium, Belgium, p.63 (2003) .
B. Luyssaert, P. Vandersteegen, R. Baets, Compact Photonic Spot-Size Converters, FTW PhD symposium, Belgium, p.57 (2003) .
W. Bogaerts, P. Dumon, V. Wiaux, J. Wouters, S. Beckx, D. Taillaert, B. Luyssaert, J. Van Campenhout, D. Van Thourhout, R. Baets, Nanophotonic waveguides in Silicon-on-Insulator Fabricated with CMOS Technology, 4th UGent FTW PhD Symposium, Belgium, p.56 (2003) .
B. Moeyersoon, G. Morthier, R. Baets, On the influence of optical amplifier noise on laser performances, IAP - Photon Doctoral School 2003 Couvin, Belgium, (2003).
D. Taillaert, R. Baets, A grating-coupler interface between photonic integrated circuits and optical fibers, 3rd FTW PHD Symposium, Interactive poster session, paper nr. 64 (proceedings available on CD-Rom) , Belgium, (2002).
J. Van Campenhout, W. Bogaerts, D. Taillaert, R. Baets, Compact photonic-crystal waveguides in Silicon-on-Insulator: design and experimental verification, LEOS Benelux Photonic Crystal Workshop, Belgium, (2002).
W. Bogaerts, V. Wiaux, D. Taillaert, S. Beckx, R. Baets, Making lots of little holes (Or using CMOS mass fabrication technology to make photonic crystals), LEOS benelux Photonic Crystal Workshop, Belgium, (2002).

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Trial court's "accomplice instruction," in effect requiring the jury to decide that a defense witness' testimony was "true beyond a reasonable doubt" before considering that testimony, impermissibly obstructed the right of a criminal defendant to present exculpatory testimony of an accomplice (Washington v. Texas, 388 U.S. 14 ); and it unfairly reduced the prosecution's burden of proof, since it is possible that the testimony would have created a reasonable doubt in the minds of the jury, but that it was not considered because the testimony itself was not believable beyond a reasonable doubt. Cf. In re Winship, 397 U.S. 358 .
Certiorari granted; 461 F.2d 521, reversed and remanded.
In this case, the court below held in effect that in a criminal trial, the jury may be instructed to ignore defense testimony unless it believes beyond a reasonable doubt that the testimony is true. That holding is fundamentally inconsistent with our prior decisions in In re Winship, 397 U.S. 358 (1970), and Washington v. Texas, 388 U.S. 14 (1967), and must therefore be reversed.
After a jury trial, petitioner was found guilty of possessing and concealing, with intent to defraud, counterfeit obligations of the United States. The evidence showed that on June 2, 1970, petitioner, her husband, and one Robert E. Voyles were traveling together by car between St. Louis, Missouri, and Brazil, Indiana. Upon reaching Brazil, Voyles left petitioner and her husband and passed two counterfeit bills at a local store. He was then arrested shortly after he entered the car in which petitioner and her husband were waiting.
After his arrest, Voyles was placed in the police car and taken to the station house. Petitioner and her husband [409 U.S. 100, 101] were told to follow in their own car. A Mr. Baumunk testified that he saw petitioner throw a paper sack out of the car window as petitioner was following the police car. The bag was subsequently found to contain counterfeit bills. Police also found three counterfeit bills crumpled up under the right seat of petitioner's car.
Although petitioner testified in her own defense, she relied primarily on the testimony of Voyles. Voyles freely admitted his own guilt, 1 but steadfastly insisted that neither petitioner nor her husband had anything to do with the crime. He testified that petitioner had merely agreed to give him a ride and knew nothing about the counterfeit bills that he carried with him. When the car stopped in Brazil, Voyles allegedly removed some of the counterfeit bills from his satchel which he kept in petitioner's trunk, and concealed the rest of the bills in a sack which he placed under the front bumper by the headlight. The defense argued that it was this sack that Baumunk saw fall to the ground as petitioner drove to the police station. Voyles also stated that after he had rejoined petitioner, he saw police approaching the car and threw the remaining bills on his person onto the car floor, again without the knowledge of petitioner. Petitioner thus asserts that she was not in knowing possession of the bills on the car floor.
But there is an essential difference between instructing a jury on the care with which it should scrutinize certain evidence in determining how much weight to accord it and instructing a jury, as the judge did here, that as a predicate to the consideration of certain evidence, it must find it true beyond a reasonable doubt.
In Washington v. Texas, supra, we held that a criminal defendant has a Sixth Amendment right to present to the jury exculpatory testimony of an accomplice. The instruction given below impermissibly obstructs the exercise of that right by totally excluding relevant evidence unless the jury makes a preliminary determination that it is extremely reliable.
Moreover, the instruction also has the effect of substantially reducing the Government's burden of proof. We held in In re Winship, supra, that the Constitution requires proof of guilt beyond a reasonable doubt. It is possible that Voyles' testimony would have created a reasonable doubt in the minds of the jury, but that it was not considered because the testimony itself was not believable beyond a reasonable doubt. By creating an artificial barrier to the consideration of relevant defense testimony putatively credible by a preponderance of the evidence, the trial judge reduced the level of proof necessary for the Government to carry its burden. Indeed, where, as here, the defendant's case rests almost entirely on accomplice testimony, the effect of the judge's instructions is to require the defendant to establish his innocence beyond a reasonable doubt.
Because such a requirement is plainly inconsistent with the constitutionally rooted presumption of innocence, the conviction must be reversed and the cause remanded for further proceedings not inconsistent with this opinion.
[ Footnote 1 ] At the time of his testimony, Voyles had already pleaded guilty to a charge of complicity in the possession and concealment of counterfeit notes.
[ Footnote 2 ] The dissent suggests that the defendant objected to the accomplice instruction solely on the ground that use of the word "accomplice" suggested that the defendant was guilty. Although the defense objection was not a model of clarity, it seems apparent that it was grounded more broadly on the trial judge's decision to give the standard [409 U.S. 100, 102] accomplice instruction despite the fact that the accomplice was a defense witness. The defense attorney stated: "I take exception to Instruction No. 16, as it's misleading. I don't think it belongs in this cause. There was no accomplice testified [sic] for the Government, and this could mislead them as to the person who was accused of this crime and has already pled guilty, as making an accomplice of him, when actually he is not an accomplice, because they are not involved in the crime." (Emphasis added.) Certainly, the trial judge understood this objection to be directed to his decision to give the standard cautionary instruction even though the alleged accomplice was called by the defendant. In colloquy with the defense attorney, the judge stated: "The next, `accomplice,' the evidence of both the Government and the defendants may be considered by the jury in determining the guilt or innocence, no matter who produces the witness. . . . Now there's a lot of inferences can be drawn from one item of evidence or another, and that's for the jury to decide. So long as there is some evidence, the instruction must be given. It hits both ways on that point." (Emphasis added.) Nor did the Court of Appeals indicate any doubt that defendant's objection was sufficient to preserve the point on appeal.
[ Footnote 3 ] True, the instruction was couched in positive terms. It told the jury to consider the evidence if it believed it true beyond a reasonable [409 U.S. 100, 103] doubt. But the statement contained a negative pregnant as well. There is an unacceptable risk that jurors might have thought they were to reject the evidence - "throw [it] out," in the words of the trial judge - if they had a reasonable doubt as to its veracity.
MR. JUSTICE REHNQUIST, with whom THE CHIEF JUSTICE and MR. JUSTICE BLACKMUN concur, dissenting.
The testimony of the witness Voyles, called by petitioner as a witness in her behalf, presented the trial judge with something of a dilemma in determining how he should charge the jury. Much of Voyles' testimony tended to exculpate petitioner, but there were significant aspects of it that did not. He substantiated the fact that the petitioner and her husband 3 had traveled with him from St. Louis to Brazil, Indiana. He corroborated prosecution evidence that both petitioner and her husband gave the same false last name of Gibbs when booked at the police station in Brazil. He also suggested a closeness to petitioner's husband which was scarcely helpful to their defense when he testified that "I was a little sore at Mike [petitioner's husband], because I thought Mike should help me [get out on bond]."
The trial judge made clear in his colloquy with counsel, while dealing with their objections to the charge, that he [409 U.S. 100, 106] was concerned about the ambivalence of Voyles' testimony and felt it necessary to give the charge relating to accomplices. Petitioner's counsel in objecting to that portion of the charge did so on a quite different ground from that now sustained by the Court; the ground of objection stated to the trial court was apparently that the mention of the term "accomplice" to the jury suggested that petitioner and her husband were in fact guilty. Such a ground of objection was wholly without merit, since, as the Court of Appeals pointed out in its opinion in this case, the instruction left it entirely to the jury to determine whether or not the facts existed that would make Voyles an accomplice.
"The entire burden of proof is upon the Government from the beginning to the end of the trial and this burden of proof never shifts from the Government to the defendants, and the defendants are not bound to prove their innocence, offer any excuse, or explain anything . . . ."
The record before us does not indicate that either counsel so much as mentioned the accomplice instruction in his argument to the jury. Nonetheless, the Court concludes that because the instruction contained a "negative pregnant" that could be taken to mean that the jurors should reject Voyles' testimony if they had a reasonable [409 U.S. 100, 107] doubt as to its veracity, the conviction is to be reversed.
"A party must make every reasonable effort to secure from the trial court correct rulings or such at least as are satisfactory to him before he will be permitted to ask any review by the appellate tribunal; and to that end he must be distinct and specific in his objections and exceptions. . . . `. . . [J]ustice itself and fairness to the court which makes the rulings complained of, require that the attention of that court shall be specifically called to the precise point to which exception is taken, that it may have an opportunity to reconsider the matter and remove the ground of exception.'" Allis v. United States, 155 U.S. 117, 122 (1894), quoting Harvey v. Tyler, 2 Wall. 328, 339 (1865).
Nor, as pointed out above, did this particular instruction of the trial court stand alone; it was incorporated into a series of instructions that had as their predominant theme that the burden of proof was upon the Government at every stage to prove guilt beyond a reasonable doubt. The trial court's instructions are to be taken as a whole, and even if an isolated passage might be error if standing by itself, that alone is not a sufficient ground [409 U.S. 100, 108] for reversal. Boyd v. United States, 271 U.S. 104, 107 (1926).
The Court's reversal on the ground that one of the instructions contained a "negative pregnant" smacks more of the scholastic jurisprudence whose shortcomings led to the enactment of 28 U.S.C. 2111 than it does of the commonsense approach to appellate review that that section mandates.
[ Footnote 1 ] "Any error, defect, irregularity or variance which does not affect substantial rights shall be disregarded." Fed. Rule Crim. Proc. 52 (a).
[ Footnote 2 ] "On the hearing of any appeal or writ of certiorari in any case, the court shall give judgment after an examination of the record without regard to errors or defects which do not affect the substantial rights of the parties." 28 U.S.C. 2111.

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