holding that EPA implementation policy was final agency action because EPA published the policy in the Federal Register within the preamble to air quality regulations and stated in that preamble that it had settled on a new policy, which would immediately apply to the implementation of ozone standards
How later courts described this case
- holding that EPA implementation policy was final agency action because EPA published the policy in the Federal Register within the preamble to air quality regulations and stated in that preamble that it had settled on a new policy, which would immediately apply to the implementation of ozone standards
- holding that where a statute provides no guidance for 23 the exercise of discretion or that has “conferred authority to regulate an entire economy on the basis of no more precise a standard than stimulating the economy by assuring ‘fair competition,’” 24 such a statute must be stricken as invalid
- holding that Chevron deference is due only to a “reasonable interpretation made by the administrator of an agency”
- stating that Congress must “lay down by legislative act an intelligible principle to which the person or body authorized to [act] is directed to conform” (alteration in original) (quoting J.W. Hampton, Jr., & Co., 276 U.S. at 409, 48 S.Ct. 348)
Written by the judges who cited it.
Distinguished
Distinguished by Voices of Wetlands v. STATE WATER RES. BD., 69 Cal. Rptr. 3d 487 (2008)
Appellant observes that the statute contains no explicit authority for cost considerations, and it urges "as a general proposition" that "an agency implementing federal law may not consider costs unless the statute clearly authorizes cost considerations," citing Whitman v. American Trucking Associations (2001) 531 U.S. 457, 467-468, 121 S.Ct. 903, 149 L.Ed.2d 1. Whitman is inapposite here.
The opinion
Justice Stevens,
with whom Justice Souter joins, concurring in part and concurring in the judgment.
Section 109(b)(1) delegates to the Administrator of the Environmental Protection Agency (EPA) the authority to promulgate national ambient air quality standards (NAAQS). In Part III of its opinion, ante, at 472-476, the Court convincingly explains why the Court of Appeals erred when it concluded that § 109 effected “an unconstitutional delegation of legislative power.” American Trucking Assns., Inc. v. EPA, 175 F. 3d 1027 , 1033 (CADC 1999) (per curiam). *488 I wholeheartedly endorse the Court’s result and endorse its explanation of its reasons, albeit with the following caveat.
The Court has two choices. We could choose to articulate our ultimate disposition of this issue by frankly acknowledging that the power delegated to the EPA is “legislative” but nevertheless conclude that the delegation is constitutional because adequately limited by the terms of the authorizing statute. Alternatively, we could pretend, as the Court does, that the authority delegated to the EPA is somehow not “legislative power.” Despite the fact that there is language in our opinions that supports the Court’s articulation of our holding, 1 I am persuaded that it would be both wiser and more faithful to what we have actually done in delegation cases to admit that agency rulemaking authority is “legislative power.” 2
The proper characterization of governmental power should generally depend on the nature of the power, not on the identity of the person exercising it. See Black’s Law Dictionary 899 (6th ed. 1990) (defining “legislation” as, inter alia, “[formulation of rule[s] for the future”); 1 K. Davis & R. Pierce, Administrative Law Treatise §2.3, p. 37 (3d ed. 1994) (“If legislative power means the power to make rules of conduct that bind everyone based on resolution of major policy issues, scores of agencies exercise legislative power routinely by *489 promulgating what are candidly called ‘legislative rules’”). If the NAAQS that the EPA promulgated had been prescribed by Congress, everyone would agree that those rules would be the product of an exercise of “legislative power.” The same characterization is appropriate when an agency exercises rulemaking authority pursuant to a permissible delegation from Congress.
My view is not only more faithful to normal English usage, but is also fully consistent with the text of the Constitution. In Article I, the Framers vested “All legislative Powers” in the Congress, Art. I, § 1, just as in Article II they vested the “executive Power” in the President, Art. II, § 1. Those provisions do not purport to limit the authority of either recipient of power to delegate authority to others. See Bowsher v. Synar, 478 U. S. 714, 752 (1986) (Stevens, J., concurring in judgment) (“Despite the statement in Article I of the Constitution that ‘All legislative powers herein granted shall be vested in a Congress of the United States,’ it is far from novel to acknowledge that independent agencies do indeed exercise legislative powers”); INS v. Chadha, 462 U. S. 919, 985-986 (1983) (White, J., dissenting) (“[Ljegisla-tive power can be exercised by independent agencies and Executive departments ...”); 1 Davis & Pierce, Administrative Law Treatise § 2.6, at 66 (“The Court was probably mistaken from the outset in interpreting Article I’s grant of power to Congress as an implicit limit on Congress’ authority to delegate legislative power”). Surely the authority granted to members of the Cabinet and federal law enforcement agents is properly characterized as “Executive” even though not exercised by the President. Cf. Morrison v. Olson, 487 U. S. 654, 705-706 (1988) (Scalia, J., dissenting) (arguing that the independent counsel exercised “executive power” unconstrained by the President).
It seems clear that an executive agency’s exercise of rule-making authority pursuant to a valid delegation from Congress is “legislative.” As long as the delegation provides a *490 sufficiently intelligible principle, there is nothing inherently unconstitutional about it. Accordingly, while I join Parts I, II, and IV of the Court’s opinion, and agree with almost everything said in Part III, I would hold that when Congress enacted § 109, it effected a constitutional delegation of legislative power to the EPA.
See, e. g., Touby v. United States, 500 U. S. 160, 165 (1991); United States v. Shreveport Grain & Elevator Co., 287 U. S. 77, 85 (1932); J. W. Hampton, Jr., & Co. v. United States, 276 U. S. 394, 407 (1928); Field v. Clark, 143 U. S. 649, 692 (1892).
See Mistretta v. United States, 488 U. S. 361, 372 (1989) (“[0]ur jurisprudence has been driven by a practical understanding that in our increasingly complex society . . . Congress simply cannot do its job absent an ability to delegate power . . .”). See also Loving v. United States, 517 U. S. 748, 758 (1996) (“[The nondelegation] principle does not mean . . . that only Congress can make a rule of prospective force”); 1 K. Davis & R. Pierce, Administrative Law Treatise §2.6, p. 66 (3d ed. 1994) (“Except for two 1935 cases, the Court has never enforced its frequently announced prohibition on congressional delegation of legislative power”).