Amicus Curiae Brief — Whitman v. American Trucking Assns., Inc.

Nos. 99-1257, 99-1263, 99-1265

IN THE

SUPREME COURT OF THE UNITED STATES

+

Carol. M. Browner, Administrator of the

United States Environmental Protection Agency, ef ai.,

Petitioners

v.

American Trucking Associations, Inc., ef ai,

Respondents/Cross-Petitioners

«

On Petition For A Writ Of Certiorari

To The United States Court Of Appeals

For The District Of Columbia Circuit

o

AMICUS CURIAE BRIEF

FOR THE MANUFACTURERS ALLIANCE/MAPI INC.

IN SUPPORT OF RESPONDENTS AND CROSS-

PETITIONERS AMERICAN TRUCKING

ASSOCIATIONS, ET AL.

e

Frederick T. Stocker _ Joseph E. Schmitz

Vice President and Counsel Counsel of Record

Alex A. Beehler Gregory S. Walden

Attorney PATTON BOGGS LLP

Manufacturers Alliance/MAPI Inc. 2550 M Street NW

1525 Wilson Blvd, Suite 900 Washington, D.C. 20037

Arlington, VA 22209-2411 (202) 457-6086

(703) 841-9000 Counsel for Amicus Curiae

Manufacturers Alliance/MAPI

TABLE OF CONTENTS

TABLE OF AUTHORITIES

INTEREST OF AMICUS CURIAE

ARGUMENT

I,

TABLE OF CONTENTS

THIS CASE PRESENTS THE BEST

OPPORTUNITY SINCE BENZENE FOR

THE COURT TO CLARIFY THE LIMITS

OF AGENCY DISCRETION WHEN

CONGRESS DELEGATES BROAD POWER

OVER THE U.S. ECONOMY, BUT FAILS

TO PROVIDE AN = “INTELLIGIBLE

PRINCIPLE” THAT ENCOMPASSES THE

Py Fe

A. The Court Should Grant Certiorari To

Clarify The Application Of The

Nondelegation Doctrine To Agency Policy

Decisions That Profoundly Affect The

Economy And Are Motivated By New (And

Contested) Scientific Findings That Congress

Neither Foresaw Nor Provided For. ...................006

B. The Court Should Grant Certiorari To

Affirm That The Court Of Appeals Properly

Rejected EPA’s Interpretation Of Section 109

Of The Clean Air Act As Lacking Any

«gE ID

we @

une

Il.

CONCLUSION

THE COURT CAN AND SHOULD USE

THIS CASE TO SFTTLE THE PROPER

APPLICATION OF THE

NONDELEGATION DOCTRINE AND TO

SORT OUT THE ROLE OF ALL THREE

BRANCHES OF GOVERNMENT _IN

ADAPTING LAWS TO CHANGING

ALS TG. ..c.ccscescscocoeseenssosesenenienennsiinananinninnnnnnnna

A. The Court Should Update and Refocus the

Nondelegation Doctrine on Accountability By

Reaffirming A Narrow Rule Of Construction. ......

B. When Congress Delegates Broad

Authority, It Should Include Limiting

Principles That Are Both Intelligible and

C. When An Administrative Agency Feels

Compelled To Act, But Finds That Changes In

Science Have Rendered An_Intelligible

Principle Unworkable, The Agency Should

Seek A _ Legislative Extension Of Its

PNT

—_

. 10

»

TABLE OF AUTHORITIES

CASES

A.L.A. Schechter Poultry Corp. v. United States,

aoa nentaneeemmnnccenesnses passim

American Power & Light Co. v. SEC, 329 U.S. 90

Chevron U.S.A., Inc. v. Natural Resources Defense

Council, 467 U.S. 837 (1984) .........ccccccscccerscessceseceeceseeees 8,15

Cipollone v. Liggett Group, Inc., 505 U.S. 504

Food and Drug Administration v. Brown &

Williamson Tobacco Corp., No. 98-1152,

Tlie eresrtnpannecunemnnsnnnesecsnees 9,11, 14

Industrial Union Dep't v. American Petroleum

Institute, 448 U.S. 607 (1980)....0....cccccccccceecceeeeeeseeeneees 7,8, 11

INS v. Chadha, 462 U.S. 919 (1983) ........ccccccccscescesseeeseeeeeeees 8

International Union, UAW v. OSHA

(Lockout/Tagout I), 938 F.2d 1310 (D.C. Cir.

aie bedteeenedrnnceinenneneonenasnncenestasccccsooeecesieeepeccsec 5

J.W. Hampton, Jr., & Co. v. United States, 276

SIT iettisreinnnetrmsncscnemsenecennccessensenscaccsceecses =a... G

Lead Industries, 647 F.2d 1130 (D.C. Cir. 1980)............ 8, 13

Mistretta v. United States, 488 U.S. 361 (1989).. 4, 10, 11, 12

National Cable Television Assn. v. United States,

Ee 11

a i

iV

Nos. 99-1257, 99-1263, 99-1265

United States v. Heth, 3 Cranch 399 (1806) ............c.cc000000+ 11 In the Supreme Court of the United States

CONSTITUTIONAL PROVISIONS

Carol M. Browner, Administrator of the

iinet 10 | United States Environmental Protection Agency, ef ai.,

Petitioners

STATUTES v.

American Trucking Associations, Inc., ef al. ,

Clean Air Act, 42 U.S.C. 7401 ef 8€q. .......2..c.ccecceeceeeees passim Respondents/Cross-Petitioners :

National Industrial Recovery Act of 1933 ............ccccccccccseeeees 2

On Petition For A Writ Of Certiorari

OTHER AUTHORITIES To The United States Court Of Appeals

For The District Of Columbia Circuit

Benjamin Cardozo, The Nature of the Judicial

Process (1921) seccceceseccscosccoococoseocosoossoossooosescosoocosocoooososooosoocees 9 AMICUS CURIAE BRIEF FOR

Randall Lutter and Christopher DeMuth, “Ozone THE MANUFACTURERS ALLIANCE/MAPI INC.'

and the Constitution at EPA” American Enterprise

I SINT iniideiiinieernasibatiaienseiaserseenndhsdsitieetieaniiiidiianiee 7,13

INTEREST OF AMICUS CURIAE’

The Manufacturers Alliance/MAPI Inc. (“MAPT”) is

organized as a nonprofit research and educational institution,

as defined in the Internal Revenue Code, 26 U.S.C.

§501(c6), and is supported today by some 450

manufacturing companies. MAPI also operates the Institute

for Technological Advancement, a nonprofit research and

educational institution as defined under Section 501(c)(3) of

the Internal Revenue Code. MAPI owes its existence in its

present form to the Court’s decision in A.L.A. Schechter

' Pursuant to Supreme Court Rule 37.6, in addition to Counsel identified

on the cover, Brian Mannix, MAPI’s Director of Science and Technology

Studies, participated in authoring this brief. No entity other than MAP!

provided financial support for this brief.

The consent of the parties to the filing of the amicus curiae brief has

been obtained and filed with the Clerk of the Court.

Poultry Corp. v. United States, 295 U.S. 495 (1935)

(“Schechter Poultry’).

MAPI was originally organized as the Machinery and

Allied Products Institute, an “industry association” under the

National Industrial Recovery Act of 1933 (“NIRA”), for the

purpose of drafting a “code of fair competition” for

corporations in SIC Code 35, Machinery and Allied Products.

The economic philosophy underlying NIRA — that the nation

suffered from excess investment in productive capacity and

wou'd benefit from government-imposed restraints on

competition and on new capital investment — was anathema

to manufacturers of machinery and equipment. NIRA’s

direct restrictions on the purchase of new machinery was

particularly troubling to members of SIC Code 35.

Thus, far from embracing its role as a “co-delegatee”

with the National Recovery Administration, MAPI’s

founders recoiled from the code-development tasks they were

directed to undertake. From its origin, MAPI was charged by

its members with developing public policy arguments in

support of economic expansion, technological innovation,

and productivity growth, and in opposition to detrimental

government restraints on capital investment.

After the Court vacated NIRA in Schechter Poultry,

MAPI turned its energies to its research and education

mission, which continues today. The petition and cross-

petitions now before the Court involve MAPI’s longstanding

interest in the nondelegation doctrine as well as its

longstanding opposition to broad governmental restrictions

on economic growth and technological innovation.

Of particular interest to MAPI members are the sorts

of restrictions on new capital investment that are typically

imposed under the Clean Air Act within areas designated as

“nonattainment” with respect to the ozone and particulate

matter National Ambient Air Quality Standards (“NAAQS”)

at issue in this case. Just as such capital investment

restrictions were not economically beneficial in 1935, they

are not environmentally beneficial in 2000.

a ia i cal

3

Among MAPI’s members are the developers and

producers of catalytic converters, fuel injectors, air bags,

advanced power generation systems, gas turbines, and many

other technologies that improve our lives in myriad ways.

The members of MAPI are proud of the contributions they

make to safety, fuel economy, and a cleaner environment,

and they know that these desiderata do not flow from the tip

of the regulator’s pen. In its comments on the Office of

Susmnnent@uhets Wiba inane Oamenen

the Costs and Benefits of Federal Regulations MAPI noted:

Automobile manufacturers and their suppliers devote

considerable resources to improving vehicle safety. The

benefits NHTSA attributes to its regulation are, in fact,

returns on the investment made by manufacturers. The

people who work in product and materials research,

manufacturing, quality systems, and even — perhaps

especially — marketing, like to think that their efforts and

their resourcefulness have contributed to the safety of

modern cars. The same is also true for environmental

benefits and other categories of regulatory benefits — rule

writers may have helped, but they did not accomplish all

these things on their own.

The substantial progress that has been made in safety and

environmental quality over the past 65 years is the product of

hard work, creativity, innovation, and capital investment.

Blanket restrictions on new capital investment are a

blunt instrument for cleaning the air, and one that was

intended to be used only as a temporary measure and only in

isolated problem spots. Notwithstanding the demonstrable

progress that has been made in air quality, EPA’s revised

NAAQS would perpetuate and dramatically expand the

geographic scope of the nonattainment regulatory regime.

The result will be very serious adverse consequences for our

nation’s economic prosperity, and no or even negative

benefits for our environment.

SUMMARY OF ARGUMENT

The delegation of legislative authority in Section 109

of the Clean Air Act - as EPA would interpret it — is as

broad, costly, standardless, and as inimical of political

accountability as any comparable regulatory delegation since

NIRA. Moreover, the delegation issue in this case is likely to

recur with more regularity, because of dynamic develop<nents

in scientific knowledge and technology. The new

paradigmatic case features: (1) a broad delegation to an

agency; (2) profound changes in facts, science, or

technology; (3) that were not directly addressed by Congress

and (4) for which Congress made no administrative

provision. Under these circumstances an_ intelligible

principle in the original legislative delegation may no longer

provide a meaningful guide to administrative action. This is

just such a case.

‘[W)hile the doctrine of unconstitutional delegation is

unquestionably a fundamental element of our constitutional

system, it is not an element readily enforceable by the

courts.” Mistretta v. United States, 488 U.S. 361, 415 (1989)

(Scalia, J., dissenting). MAPI respectfully submits that the

Court can mitigate these enforcement difficulties by granting

certiorari and reaffirming that: (a) only Congress may

“establish [or expand] the standard of legal obligation” in the

Clean Air Act; (b) both courts and agencies should utilize a

narrow rule of construction for nondelegation cases such as

this; (c) courts should give greater latitude to forms of

delegation that provide a “balancing” principle for

administrative action; and (d) a judicial preference for

vacating rules rather than statutes is a reasonable and

practical way to enforce the constitutional separation between

the two political branches without wreaking unnecessary

havoc on legislative and administrative processes.

ARGUMENT

I. THIS CASE PRESENTS THE BEST

OPPORTUNITY SINCE BENZENE FOR THE

COURT TO CLARIFY THE LIMITS OF

AGENCY DISCRETION WHEN CONGRESS

DELEGATES BROAD POWER OVER THE U.S.

ECONOMY, BUT FAILS TO PROVIDE AN

“INTELLIGIBLE PRINCIPLE” THAT

ENCOMPASSES THE AGENCY’S ACTION.

We agree with petitioner EPA and cross-petitioners

ATA, et al., that this case presents “an important issue of

federal law that has not been, but should be, settled by this

Court.” Supreme Court Rule 10(c). We do not agree with

petitioner EPA, however, that certiorari is warranted because

the D.C. Circuit “has decided an important federal question

in a way that conflicts with relevant decisions of this Court.”

Contrary to EPA’s assertion, the decision of the Court of

Appeals is not a “radical departure from settled law;” but it

does, as EPA points out, “raise[] questions respecting the

constitutionality of a broad range of federal statutes requiring

agencies to draw lines based on scientific judgments.” EPA

Petition at 9.

The Court of Appeals correctly recognized the vast

delegation created by EPA’s interpretation of its authority

under Section 109 of the Clean Air Act. Citing Schechter

Poultry, it noted that a “more precise” delegation is required

because “the standards in question affect the whole

economy.” 175 F.3d at 1037. Moreover, the Court of

Appeals found that the breadth of the delegation significantly

exceeded another regulatory statute with a more focused

reach on the U.S. economy where the Court of Appeals had

found it necessary to fashion “intelligible principles” to

constrain the agency’s legislative discretion, id., citing

International Union, UAW v. OSHA (Lockout/Tagout I), 938

F.2d 1310 (D.C. Cir. 1991) (discretion to “do nothing at all”

or “take the industry to the brink of ruin,” with “all positions

in between” would be unconstitutional). /d Here, EPA’s

discretion runs from doing “close to nothing at all” to

“send[ing]} industry not just to the brink of ruia but hurtling

over it,” Jd. Nor are there any “special theories,” such as the

war powers of the President, to justify an excessive

delegation. /d.

In the years since “Gohecher Poultry, the

nondelegation doctrine has continued to serve as one of the

bulwarks of the constitutional separation of powers. This

brief addresses the respective authorities and responsibilities —

of the three Branches of Government in this type of case. It

also addresses other questions raised by petitioners and

respondents to the extent that they bear on the meaning and

application of the nondelegation doctrine.

A. The Court Should Grant Certiorari To Clarify

The Application Of The Nondelegation Doctrine

To Agency Policy Decisions That Profoundly

Affect The Economy And Are Motivated By New

(And Contested) Scientific Findings That Congress

Neither Foresaw Nor Provided For.

The Court should grant certiorari not to reverse the

decision of the Court of Appeals, which MAPI believes was

essentially correct, but to provide guidance to agencies and

reviewing courts as to the application of the nondelegation

doctrine to the Clean Air Act and in similar contexts.

This case presents the question of what role the

Court’s nondelegation doctrine piays where advances in

scientific knowledge or technology create a chasm between

the factual context that an agency believes it is operating in

and the factual context of the original legislation. By altering

the meaning of even simple words like “safe” or “zero,”

scientific progress has the potential to render legislative

decisions unrecognizable to those who made them.’

MAPI respectfully urges the Court to use this

opportunity to clarify the proper role the nondelegation

doctrine plays in reviewing broad congressional delegations

of authority applied to facts that change as science and

technology evolve. Twenty years have passed since this

Court’s decision in. /ndustrial Union Dep't v. American

Petroleum Institute, 448 U.S. 607 (1980) (“Benzene”).

Considering the vast reach of federal regulatory activities

today, and the dramatic increase in health, safety, and

environmental regulation grounded in scientific judgments,

further guidance from the Court on the limits of delegation is

necessary and timely.

This Court should grant certiorari in order to reaffirm

that only Congress may “establish [or expand] the standards

of legal obligation” (Schechter Poultry, 295 U.S. at 530)

imposed in the Clean Air Act, and to provide guidance to

EPA, to other Executive agencies, and to all reviewing courts

as to their respective responsibilities where an “intelligible

principle” is no longer apparent in the legislative delegation

because of a change in facts, science, or technology, which

Congress neither addressed nor foresaw.

> See Randall Lutter and Christopher DeMuth, “Ozone and the

Constitution at EPA” American Enterprise Institute (July 1999) at 2 (“But

whatever its fate on further appeal or in subsequent cases, the decision

has revealed a serious problem at the heart of our environmental laws.

The problem is n«: simply a matter of executive-branch usurpation or

legislative-branch abdication; it is inherent in the tension between rigid

legislation and fluid science.”).

B. The Court Should Grant Certiorari To Affirm

That The Court Of Appeals Properly Rejected

EPA’s Interpretation Of Section 109 Of The Clean

Air Act As Lacking Any “Intelligible Principle.”

The Court of Appeals noted several “intelligible

principles” that theoretically could have guided EPA’s

discretion in its administration of delegated legislative

authority, including some that are often used under health/

risk regulatory regimes, e.g., cost-benefit analysis, zero-risk,

and generic unit of harm. 175 F.3d at 1038-40. However,

both EPA and the Court of Appeals believe that cost

consideration has been unavailable since Lead Industries

Ass'n, Inc. v. EPA, 647 F.2d 1130 (D.C. Cir.), cert.

denied,449 U.S. 1042 (1980).

With respect to the Clean Air Act, we agree with

industry cross-petitioners that this Court’s review should

encompass current D.C. Circuit case law that reads Section

109 of the Clean Air Act as precluding EPA from considering

cost or technological feasibility. We suspect that

considerations of cost do in fact influence EPA’s thinking,

and there is some evidence to that effect in the record. See

ATA Conditional Cross-Petition, at 37-38 (citing EPA’s

“soft” $10,000 per ton of emissions reductions compliance-

cost cap). We agree with and incorporate by reference cross-

petitioners compelling argument that the real culprit here is a

wrongly decided Lead Industries, especially in light of

Benzene, INS v. Chadha, 462 U.S. 919 (1983), and Chevron

U.S.A., Inc. v. Natural Resources Defense Council, Inc., 467

U.S. 837 (1984) (“Chevron”). See ATA Conditional Cross-

Petition at 15-26. Therefore, we agree with the cross-

petitioners’ reformulation of the question to be presented:

“Whether the Clean Act requires that the Environmental

Protection Agency must, in setting nationwide air-quality

standards, ignore all factors ‘other than health effects relating —

to pollutants in the air,’ given that considerations of such

factors would permit both the Agency and reviewing courts

to avoid confronting constitutional nondelegation issues.”

ATA Conditional Cross-Petition at 2-3.

II. ©THE COURT CAN AND SHOULD USE THIS

CASE TO SETTLE THE PROPER

APPLICATION OF THE NONDELEGATION

DOCTRINE AND TO SORT OUT THE ROLE

OF ALL THREE BRANCHES OF

GOVERNMENT IN ADAPTING LAWS TO

CHANGING FACTS.

The proceedings below reveal not only a statutory

delegation of legislative authority “not canalized within

banks that keep it from overflowing.” Schechter Poultry, 295

U.S. at 551 (Cardozo, J., concurring), but an urgent need for

this Court to update its guidance for lower court navigation of

hitherto uncharted nondelegation waters. The basic doctrine

remains intact. See Food and Drug Administration v. Brown

& Williamson Tobacco Corp., No. 98-1152, 529 U.S. -,

("Brown & Williamson"), slip op. at 39 (“[A]n administrative

agency’s power to regulate in the public interest must always

be grounded in a valid grant of authority from Congress.”).

But its application is subject to widespread dispute. See 195

F.3d at 15 (Silberman, J., dissenting from denial of rehearing

en banc) (“The panel, purporting to rely on interpretation

... . By so doing I believe the panel undermines the purpose

of the nondelegation doctrine.”) Clearer instruction from this

Court would dispel much of the prevailing confusion. See

Benjamin Cardozo, The Nature of the Judicial Process 178

(1921) (“Little by little the old doctrine is undermined... .

Finally we discover that the contour of the landscape has

been changed, that the old maps must be cast aside, and the

ground charted anew.”).

Nondelegation decisions in 1935 invalidated Acts of

Congress as unconstitutional; today nondelegation is

typically combined with the doctrine of constitutional

avoidance to provide rules of statutory construction. See

10

Mistretta, 488 U.S. at 371-74 & n.7 (reviewing cases). The

underlying principle — legislative accountability — remains

unchanged. But the roles of the actors need clarification.

A. The Court Should Update and Refocus the

Nondelegation Doctrine on Accountability By

Reaffirming A Narrow Rule Of Construction.

The constitutional basis for the nondelegation

doctrine, Article I, section 1 (“All legislative Powers herein

granted shall be vested in a Congress of the United States,

which shall consist of a Senate and a House of

Representatives.”), both empowers and constrains the

Legislature. As the Court explained in Schechter Poultry,

“Congress is not permitted to abdicate or to transfer to others

the essential legislative functions with which it is thus

vested.” 295 U.S. at 529. But this provision also constrains

the other two branches: neither the Judiciary nor the

Executive may legislate on its own authority and initiative,

i.e., without an “intelligible principle” having been first laid

down by Congress. J.W. Hampton, Jr. & Co. v. United

States, 276 U.S. 394, 409 (1928).

On rare occasions a statute will violate the

nondelegation doctrine on its face - NIRA was such a case —

because it displays “delegation running riot.” Schechter

Poultry, 295 U.S. at 553 (Cardozo, J., concurring). More

often, the combination of a statute’s breadth and its

ambiguity does not raise a question as to the constitutionality

of its delegated authority until an agency attempts to interpret

and apply the statute in a concrete setting.

MAPI respectfully submits that the inherent difficulty

in enforcing the nondelegation doctrine (see Méistretia,

supra), would be mitigated if the Court were to grant

certiorari and reaffirm both a narrow rule of construction in

cases such as this and the Court’s own preference for

vacating rules rather than statutes as a reasonable and

practical way to enforce the constitutional separation of

1]

powers between the two political Branches without wreaking

unnecessary havoc on legislative and administrative

processes.

When nondelegation raises questions about the

- constitutionality of a legislative enactment, both the agency

and the reviewing court have an obligation to construe the

statutory delegation of authority narrowly. Cf. United States

v. Heth, 3 Cranch 399, 413 (1806)(Paterson, J.) (“{T]he

words of a statute, if dubious, ought . . . to be taken most

strongly against the law-makers.”); Cipollone v. Liggett

Group, Inc., 505 U.S. 504 (1992) (Scalia, J. & Thomas, J.,

concurring in the judgment in part and dissenting in

part)(“[A]ny ambiguity concerning [a preemption clause’s]

scope will be read in favor of preserving state power.”).

Of course, when the consequences of an agency’s

rulemaking are massive, any interpretation of an agency’s

statutory authority “must be guided to a degree by common

sense as to the manner in which Congress is likely to delegate

a policy decision of such economic and political magnitude

to = administrative agency.” Brown & Williamson, slip op.

at 1U.

If the agency is unable to identify an intelligible

principle adequate to sustain its regulation, the reviewing

court must decide whether to vacate the enactment of the

Legislature or the action of the Executive. This Court

consistently has preferred the latter as a less drastic remedy.

See Mistretta, 488 U.S. at 373 n.7 (citing Benzene, 448 U.S.

at 646; National Cable Television Assn. v. United States, 415

U.S. 336 (1974)).

A remand to the administrative agency, such as the

Court of Appeals ordered in this case, should be viewed

neither as an appeal to the Executive’s dispassionate

expertise in statutory interpretation nor as an attempt to

salvage a foundering statute. Rather, it is simply the most

practical way for courts to resolve a conflict between

ambiguous legislative authority and a particular agency

regulation. This “no-fault” remand should not be thought of

12

as a “weak form” of the nondelegation doctrine, since the riot

gear (overturning the statute) is still available for cases where

it is needed.

It is not an unreasonable burden to require an agency

either to explain the basis and scope of its discretion or, in the

event that its authority is found wanting in the light of new

science or technology, to propose a legislative expansion of

its authority. The alternative — to permit an agency

effectively to amend the statute in view of new science —

while perhaps expedient, is constitutionally impermissible.

B. When Congress Delegates Broad Authority, It

Should Include Limiting Principles That Are Both

Intelligible and Durable.

This Court has long recognized the need for Congress

to be able to delegate broad authority to an administrative

agency. “[OJ]ur jurisprudence has been driven by a practical

understanding 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 directions.” Mistretta,

488 U.S. at 372.

But the Court is right to insist that such delegations be

accompanied by an intelligible principle to guide the

agency's exercise of discretion, in order to preserve the chain

of political accountability between the Congress and the

consequences of its legislative acts. Where governmental

actions require difficult tradeoffs, it is essential that they be

exposed to the discipline of political debate and democratic

choice.

Congress does not fully discharge its duty merely by

voting for good science, public safety, and a clean

environment, without giving attention to the means by which

statutory goals are achieved and to the range of consequences

they may entail. Congress must not only “delineate[] the

13

general policy” an agency is to apply, it must also set “the

boundaries of this delegated authority.” American Power &

Light Co. v. SEC, 329 U.S. 90 (1946).

We argue (supra) that these statutory boundaries

should be construed narrowly against a background of

changing science. But a principle of narrow construction

need not interfere with valid Congressional delegations of

authority, as long as the statute makes an appropriate

provision for taking new information into account.

- For instance, an intelligible principle that requires an

administrative agency to balance the beneficial and harmful

consequences of its actions is one that can accommodate a

wide variety of factual circumstances and changing scientific

understandings, without becoming impermissibly broad or

vague. It conveys the authority to take a range of actions in

response to new information, but it harnesses that authority to

a principle that is versatile without being vagrant. It permits

the agency to cause harms or to impose substantial costs and

obligations — even if they go far beyond what was anticipated

by Congress — but only to the extent that they are warranted

by a commensurate advancement of statutory objectives.

i In contrast, a statutory principle that requires an

administrative agency to ignore the harmful consequences of

its actions — such as EPA finds in the Clean Air Act — cannot

be regarded as durable, however intelligible it may be.° Such

language must be construed narrowly to apply only to the

particular factual context of the original legislation, because

* Lutter and DeMuth, supra n.3, at 2.“Setting a standard based on two

factors — one increasing and the other decreasing as the standard changes

; Produces, in principle, a determinate result.”

Various commenters have argued that the consideration of costs in

setting NAAQS is forbidden (Petitioner EPA), permitted (Cross-

petitioners), or required (Lutter & DeMuth). Without trying to resolve

the dispute here, MAPI submits that if such consideration is forbidden,

the EPA's authority must be narrowly construed. MAPI agrees with

Cross-petitioners that the Court should review the holding below that Lead

Industries precludes EPA’s consideration of costs.

14

to do otherwise would impermissibly sever the legislative act

from its adverse consequences. If new science becomes

available it cannot be presumed that Congress would arrive at

the same conclusions that it did at the time of enactment,

because (a) it could not consider adverse consequences of

which it was not then aware AND (b) it made no provision

for the agency to take account of them in an intelligible way.°

When the Congress puts blinders on an agency, it also applies

handcuffs, for an agency cannot be empowered to reach

farther than it can see.

Nothing in the Constitution requires that the Congress

use a substantive benefit-cost balancing standard when

writing laws; nor does it require that the Congress impose

such a standard on decisions it delegates to administrative

agencies. If it wishes to enact a delegation of authority that is

broad and durable, however, the Congress should choose

some form of versatile standard that instructs the agency to

balance the anticipated desirable and undesirable

consequences of proposed administrative actions. Courts

should give this form of delegation wide latitude, while at the

same time reading narrowly other forms of delegation that

are too rigid to allow for administrative adaptation to new

facts. That is, the very versatility of the relevant “intelligible

principle” can and should play a role in determining how far

a particular congressional enactment is intended to reach.

° The majority opinion in Brown & Williamson correctly inferred that

the rigidity of the statute — unsafe devices must be banned - argued for a

narrow construction that did not treat cigarettes as a device. Slip op. at

19. The dissent argued that one could just as easily conclude that such a

ban was required (Breyer, J., dissenting), sip op. at 14. Yet the rigidity of

the statutory language compels the Court to apply it narrowly; a more

flexible “balancing” principle might have been read more broadly.

15

C. When An Administrative Agency Feels

Compelled To Act, But Finds That Changes In

Science Have Rendered An Intelligible Principle

Unworkable, The Agency Should Seek A

Legislative Extension Of Its Authority.

‘The Court of Appeals in this case correctly

recognized the difficulties inherent in a statute that ostensibly

takes no account of costs and is applied to a pollutant whose

harm displays no discernible threshold. Lacking a clear

decision point, and lacking any overt balancing process, the

reviewing court was left contemplating the black box of the

unconstrained “judgment of the Administrator.” The Circuit

Court correctly concluded that the EPA’s interpretation of

Section 109 did not meet the established “intelligible

principle” standard. Without a stated statutory limit on the

EPA’s discretion, the delegation appears “unconfined and

vagrant.” Schechter Poultry, 295 U.S. at 551 (Cardozo, J.,

concurring).

Following Chevron, the Court of Appeals in this case

found that it is up to the agency — not the reviewing court — to

rescue the constitutionality of the delegation by discerning

the requisite intelligible principle. Of course, the agency, just

like the reviewing court, must look to the text, context, and

history of the congressional delegation to find such a

aoe me ge aha is the institution constitutionally

accoun: or consequences of any expansion of the

—" of legal obligation.” Schechter Poultry, 295 U.S.

ee Often, however, even where Congress has enacted an

intelligible principle into law, some unanticipated change in

science or technology may cause that principle to become

obsolete, or fail to provide intelligible parameters in certain

factual settings.

Under these circumstances, if the agenc proposes to

promulgate regulations that respond to a changed factual

landscape, but cannot find an intelligible principle that

16

applies to the circumstances at hand, it should request from

Congress an expansion of its authority. No administrative

agency may lawfully address a given factual situation if its

authorizing statute lacks an intelligible principle that can

accommodate that situation. Nor can the agency solve the

problem merely by consulting with scientists. Science dwells

in the realm of fact, and fact by itself cannot make law.

Modern statutes, such as the Clean Air Act, frequently

delegate authority to the Executive to decide what is “safe” or

“adequate” or “requisite” to protect “the public health.” One

consequence is that agency rules are often based on scientific

findings that are difficult for the courts to review. The degree

to which a court should scrutinize an agency’s scientific

findings, and the degree to which this agency’s science could

withstand such scrutiny, are both interesting questions. But

the more fundamental question is whether science is capable

of resolving disputes that have deep economic and political

dimensions.

In the present case, the EPA proposes a regulatory

regime that imposes far greater costs than benefits — costs

that the agency itself refuses to consider. A decision of this

gravity must at some point acquire political legitimacy, and

the agency must look to Congress to provide it. This political

legitimacy can take the form either of an intelligible principle

discerned from an existing statute (one adequate to the

factual situation), or of an enactment expanding the agency’s

authority. But neither the judgment of an Administrator nor

the conclusions of science can substitute for legislative

deliberation.

The agency, whose action precipitated the controversy

before the court, is in the best position to decide which of

three courses to take: (1) Develop a new interpretation of its

statutory authority that dispels any concerm about

unaccountable delegation; (2) Scale back its own regulation

to comply with a narrower interpretation of its statutory

authority; or (3) Propose to the Congress a statutory

17

amendment that would grant the agency the authority it

believes it needs.

Petitioner EPA in this case would spurn all three

avenues and now asks the Court, in effect, to remove the

constitutional impediments to its free exercise of self-

ascribed authority. MAPI respectfully urges the Court to

grant certiorari in order to dispel any notion that such carte

blanche authority can be countenanced within the

constitutional separation of powers.

CONCLUSION

As this case provides an opportunity for the Court to

enunciate the relevance of the nondelegation doctrine in

reviewing agency interpretations of broad grants of authority

in spheres of rapidly changing science, amicus curiae MAPI

supports granting a writ of certiorari.

Respectfully submitted,

FREDERICK T. STOCKER JOSEPH E. SCHMITZ

Vice President and Counsel __ Counsel of Record

ALEX A. BEEHLER GREGORY S. WALDEN

Attorney PATTON BOGGS LLP

Manufacturers 2550 M Street NW

Alliance/MAPI Inc. Washington, D.C. 20037

1525 Wilson Blvd, Suite 900 (202) 457-6086

Arlington, VA 22209 Counsel for Manufacturers

(703) 841-9000 Alliance/MAPI Inc.

March 28, 2000