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

' FILED

PS SEP 11 2000

No. 99-1257 CLERK

bewe

Supreme @ourt, US.

In The

Supreme Court of the United

States

CAROL M. BROWNER, Administrator of the

Environmental Protection Agency, et al.,

Petitioners,

v.

AMERICAN TRUCKING ASSOCIATIONS, INC., et al.,

Respondents.

On A Writ of Certiorari to the United States Court of

Appeals for the District of Columbia Circuit

AMICUS CURIAE BRIEF OF AMERICAN CROP

PROTECTION ASSOCIATION, AMERICAN WOOD

PRESERVERS INSTITUTE, CHEMICAL

SPECIALTIES MANUFACTURERS ASSOCIATION,

THE FERTILIZER INSTITUTE, INTERNATIONAL

SANITARY SUPPLY ASSOCIATION, NATIONAL

PEST MANAGEMENT ASSOCIATION,

PROFESSIONAL LAWN CARE ASSOCIATION OF

AMERICA, AND RISE (RESPONSIBLE INDUSTRY

FOR A SOUND ENVIRONMENT) IN SUPPORT OF

HERBERT L. FENSTER*

: : LAWRENCE S. EBNER

MONICA A. AQUINO

_ MCKENNA & CUNEO, L.L.P.

1900 K Street, NW.

Washington, D.C. 20005

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TABLE OF CONTENTS

Page

ee Cee i eicicernitsincsensivnititiianiiianiiitiiiinned ill

POs GE AI CIE cccsccinscccciinnsscsininiensoniessiiccints l

SUMMARY OF ARGUMENT..........ccsccssesssocscscsessesscsceseees 3

TTI sisisiasinscisiiniiibcticieitiinansdlinliibiapemiatiasdiniapadiipntinigiiianiiilis 5

I. THIS COURT’S PRIOR NONDELEGATION

PRECEDENTS DO NOT PROVIDE A

REASONABLY CLEAR BASIS FOR

DETERMINING WHEN CONGRESS HAS

IMPROPERLY DELEGATED ITS LEGISLATIVE

IIIT ovccnccsiiniinsnsindncnctinintenenticnntinteeniiiesies 11

A. A Weak History For Three-Quarters Of A

a enssesanivenidtinninidunaedinnmmtinte 11

B. A Tentative Effort Starting In 1980.............. 15

od FRO BERING LRG ecccccccccsesccescsessssccssscsssese 18

Il. CONTEMPORARY REGULATORY

COMPLEXITIES DO NOT REQUIRE

ABANDONMENT OF CONSTITUTIONAL

REQUIREMENTS FOR ENACTMENT OF

REASONABLY PRECISE STATUTORY

PRINCIPLES AND STANDARDS ...........:..cccccee000 19

Il. NONDELEGATION IS NOT SUBSUMED

PD GPU cenncretssannisstncsictineninenmenmenmesemmemen 24

THE OVERTURNING OF § 109 OF THE CLEAN

AIR ACT WOULD NOT DISRUPT THE

NATION’S EFFORTS TO REGULATE AIR

PRREPEEITS §——ccsacciensnnennserseniencnnitnnsnanenescesnnsoanananenes 29

SPU ITIIET sncianinccsescninieiiesincsensenninimninnumeseeoenemmmmnas 30

ill

TABLE OF AUTHORITIES

CASES

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

ee 12, 13,14

American Textile Mfrs. Inst., Inc. v. Donovan,

452 U.S. 490 (1981) (“Cotton Dust”)... 16, 17, 23, 28

American Trucking Ass'ns, Inc. v. EPA,

175 F.3d 1027 (D.C. Cir. 1999) (“American

ng CE passim

American Trucking Ass'ns, Inc. v. EPA, 195

F.3d 4 (D.C. Cir. 1999) (“American

Trucking Rehearing’) ..............000eeeeee 8, 10, 25, 27

Bowsher v. Synar, 478 U.S. 714 (1986) ............cc000000 11

Buckley v. Valeo, 424 U.S. 1 (1976) ..........cccccceceeeeeeees ll

Chemical Mfrs. Ass'n v. EPA, 217 F.3d 861

Si: GE SEN I SUSE eersnazsszecnscnscussnscsnsesnsenssees 29

Chevron, U.S.A., Inc. v. NRDC, 467 U.S. 837

TREEITED cietusicresonnennnencesncenionsasnnemecsnsmmesnsncsemmmencnses 10

Clinton v. New York, 524 U.S. 417 (1998) ..........000000 18

Field v. Clark, 143 U.S. 649 (1892) .......ccccccccccccsceeeeees ll

First American Discount Corp. v. Commodity

Futures Trading Comm'n, No. 99-1098,

2000 WL 1099978 (D.C. Cir. Aug. 18, 2000) ....... 28

iv

INS v. Chadha, 462 U.S. 919 (1983) ........ccccccseeeeeeeeees 11

Industria! Union Dep't v. American Petroleum

Inst., 448 U.S. 6©7 (1980) (“Benzene’”’)...... 15, 23, 28

International Union, UAW v. OSHA, 938 F.2d

soo) fe. § | en 24

International Union v. OSHA, 37 F.3d 665 (1994) ..... 26

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

es SOE censennenemmnnininnien 7,12

Lead Indus. Ass'n v. EPA, 647 F.2d 1130

NA ————————————————EE 8, 22, 27

Mistretta v. United States, 488 U.S. 361

GED cennsnsennemapennsemnennn 13, 18, 20, 21

Morrison v. Olson, 487 U.S. 654 (1988) ..........ccc000000 11

National Cable Television Ass'n, Inc. v. U. S.,

oh BD een 12

Northern Pipeline Constr. Co. v. Marathon

Pipe Line Co., 458 U.S. 50 (1982) ...........0200-+ 11,29

Panama Refining Co. v. Ryan, 293 U.S. 388

CE ccenenmsnnsunmminsnenisiineneinens 12

Society of Plastics Industry, Inc. v. ICC,

O65 F.28 TRG GR: CED cerns 28

Wayman v. Southard, 23 U.S. (10 Wheat.) 1

Se ll

Youngstown Sheet & Tube Co. v. Sawyer,

SUT Cs PE cctinniterenidnitetionmnicimenunenmenees 14

STATUTES

Clean Air Act, 42 U.S.C. § 7401 et seq.

§ 109(b)(1)-(2), 42 U.S.C.

SPIED cxsncmsnscenmentesnenminninignnbites 6, 9, 20

Occupational Safety and Health Act of 1970,

re Or I nitiitinionniesinennnnicniiinsininicidianies 15

Bp ee CP ise SII weizrensnsratutinnniennnntentmennincinies 16

§ 6(b)(S), 29 U.S.C. § GSS(D)(5) ..........cececcereeeeeeeees 16

MISCELLANEOUS

Scalia, “The Legislative Veto: A False Remedy

for System Overload,” REG., Nov.-Dec.

Scalia, “A Note on the Benzene Case,”

ag IN THITIIE wiicicrineibeenrieiniesieesiciasintasiianeiitsiast 22

]

INTEREST OF AMICI CURIAE!

The American Crop Protection Association (ACPA)

is a not-for-profit trade organization that represents the major

manufacturers, formulators, and distributors of crop

protection, pest control, and biotechnology products. ACPA

member companies produce, sell, and distribute virtually all

the scientific technology products used in crop production by

American farmers.

The American Wood Preservers Institute (AWPI) is

the national industry trade association representing the

pressure-treated wood industry throughout the United States.

Member companies are wood pressure treaters, preservative

manufacturers, and supporting companies working to

conserve forest resources, preserve the environment, and

extend the life of wood products through the manufacture of

pressure-treated wood.

The Chemical Specialties Manufacturers Association

(CSMA) is a voluntary, nonprofit trade association composed

of severai hundred companies engaged in the manufacture,

formulation, distribution and sale of non-agricultural

pesticides, antimicrobials, detergents and _ cleaning

compounds, industnal and automotive specialty chemicals

and polishes, and floor maintenance products for household,

institutional, and industrial uses.

l All parties have consented to the submission of this brief.

Their letters of consent have been filed with the Clerk of the

Court. Pursuant to S. Ct. R. 37.6, amici curiae hereby affirm that

no counsel for any party in this case authored any part of this

brief, and that no person or entity made a monetary contribution

specifically for the preparation or submission of this brief. -

The Fertilizer Institute (TFI) is a voluntary, nonprofit

trade association of the fertilizer industry. TFI's nearly 250

member companies manufacture over 90 percent of the

domestically produced fertilizer. TFI's membership includes

producers, manufacturers, distributors, transporters, and retail

farm suppliers of fertilizers and fertilizer materials.

The International Sanitary Supply Association (ISSA)

is a nonprofit trade association comprised of over 4,600

manufacturers and distributors of institutional and industrial

cleaning and maintenance products. As such, the

membership plays a key role in maintaining the sanitary and

healthful conditions of institutional/industrial facilities such

as day care centers, schools, hospitals, nursing homes, hotels,

restaurants, and food processing plants.

The National Pest Management Association (NPMA)

is a not-for-profit trade association that represents

approximately 5,000 firms that are engaged in the business of

providing structural pest management services to residential,

commercial, and industrial customers, as well as companies

that produce or distribute the products used by such firms.

The Professional Lawn Care Association of America

(PLCAA) is an international association that promotes

education, balanced legislation, and public awareness of the

environmental and aesthetic benefits of turf and ornamentals.

Its mission is “Growing Leaders” in the Green Industry.

PLCAA represents more than 1,200 lawn and landscape

companies, industry suppliers, government agencies, grounds

managers, educators, and students in the United States,

Canada, and other countries.

RISE (Responsible Industry for a Sound

Environment) is the national association representing the

oo —

3

manufacturers, formulators, distributors, and other industry

leaders involved with pesticide products used in turf,

ornamental, pest control, aquatic and terrestrial vegetation

management, and other nonfood/fiber applications.

Amici are trade associations whose members are

directly affected by EPA’s health, safety, and environmental

standards, including those promulgated pursuant to § 109 of

the Clean Air Act (CAA). Given that the Clean Air Act

provides no certain course for determining how clean the air

should be, amici focus on the constitutional nondelegation

issue presented in this case. In particular, amici address the

question of whether Congress has legislated with sufficient

clarity and precision so that the Executive Branch can make

decisions on such matters in order to fulfill a statutorily

enunciated principle governing life and health.

SUMMARY OF ARGUMENT

A delegation to an Executive Branch agency to

establish standards for particulate matter in our air that recites

no more than "requisite to protect the public health" and

"public welfare” is plainly unconstitutional. If that fact were

not readily apparent, it certainly becomes so when it is seen

that these meager terms, undefined and unexplained, enable

an Executive Branch agency to write regulations over a range

of possibilities that include deindustrialization of the nation

on one extreme, and possibly tens of thousands of deaths and

illnesses on the other.

This Court's jurisprudence provides little usable

guidance in its precedent nondelegation cases to address the

instant case. From this sparse case law we have no more than

a series of terms including "intelligible principles,"

"standards," and “boundaries” for use as models to determine

whether a provision of a statute inadequately communicates

4

the intentions of the legislative branch. These terms appear

especially inadequate where the statutory provision is capable

of producing profound changes in virtually all of our society.

It has become very readily apparent that Congress

increasingly is using the legislative delegation device to

avoid making hard choices and to pass to the two coordinate

branches, issues which are too hot to handle. In no instance

is this aspect of the problem more apparent than in the

present case. CAA § 109 has been in effect for thirty years,

the problems with its interpretation have been notorious for

all that time, and no further explication has been received

from the Legislative Branch; nor have the problems with its

interpretation abated in all of that time notwithstanding many

efforts at addressing these problems by the courts.

One overriding problem produced by this intended

silence is the question of whether the economics of

compliance shall be considered by the Environmental

Protection Agency (EPA) in developing regulations. Twenty

years ago, the D.C. Circuit prohibited such consideration.

Yet, not only has it become readily apparent that rulemaking

without such consideration is impossible, but the silence of

Congress combined with this ruling has sent economic

considerations underground. It is fair to note that the refusal

of Congress to address the imperative need to consider cost

benefit and economics more generally where health and

welfare are unquestionably traded off, has become a generic

nondelegation problem affecting a wide range of statutes,

many of which have, as a result, wound up before the courts,

including this Court.

It is not imperative of our larger and more complex

society that Congress must yield its legislative

responsibilities to the other two coordinate branches. The

movement in that direction ultimately undermines a core

5

requirement of separation of powers. This Court has long

held that Congress can call upon many assets, including those

appearing for purposes of petitioning and, of course, those

available to the Executive Branch, in this case, the EPA.

Thus, the very parties before this Court (including the many

amici), and the very arguments being made here, to the court

below and to EPA itself, should have been made to Congress,

which then should have provided the Executive Branch with

meaningful guidance for these critical decisions.

EPA should not be permitted to substitute its

supposition for the enunciated intent of Congress. The courts

should not be imposed upon to complete the making of

legislation requiring choices seen as politically too hard for

the nation's elected representatives. This case contains

sufficiently far reaching and profound requirements for the

Court to enunciate the violation of the nondelegation

doctrine. The decision should be reversed, the provision

declared unconstitutional, and Congress given the

opportunity, after thirty years, to enunciate its objectives in

terms sufficiently precise to enable regulation and not

lawmaking by EPA.

ARGUMENT

We limit the address of this brief to the issue of

nondelegation, and we limit our factual setting to particulate

matter (PM). The first limitation accords with the

determination by the Court on the planned "two rounds" of

briefing. The second limitation is self-imposed. While these

amici take some issue with the posture of the ozone standards

and the D.C. Circuit's decisions on that subject, it is the view

of these amici that the dominant issue, subsuming all others

in the case, is nondelegation.

6

When Congress passed the CAA in 1970, it included

as § 109(b)(1)-(2) a provision requiring EPA to create

primary air standards, including those for PM and ozone

"requisite to protect the public health" with "an adequate

margin of safety,” and secondary air standards "requisite to

protect the public welfare." 42 U.S.C. § 7409(b)(1)-(2).

While the subject is contested, it is quite clear that Congress -

literally - did nothing to define what it meant by these terms.

As a result, over the succeeding thirty years, EPA, industry,

and public interest groups have struggled to understand just

what these terms mean. This was no easy task because,

unlike parallel pollution abatement and safety requirements

imposed by legislation of the same vintage, these

requirements transcended anything that was site or industry

specific and portended wholesale changes to be imposed in

every corner of American life. The reach of "public health"

and "public welfare” in this case is what casts the case as a

nondelegation issue.

EPA first issued rules under these provisions in 1971.

They were revised for ozone in 1979 and for PM in 1987.

This case is the product of further revisions to both,

originally begun in the early 1990s. It is uncontested that

there has been a huge leap forward over the thirty years - and

at an accelerating rate - in our ability to know what the

pollutants are, what are their sources, the extent of their

presence in our ambient air, and the nsks to human well-

being. Similarly we have experienced considerable advances

in our ability to curtail these risks from many, if not all, of

their sources. Not only does the CAA require renewed

inquiries and rulemaking, but it is certainly provident for

EPA to conduct the exercise that gives rise to this case.

In July 1997, EPA issued its final rules revising the

primary and secondary National Ambient Air Quality

Standards (NAAQS) for PM, and the instant case was

7

initiated by several petitioners. Certain of the petitioners

seemed to take the position that the interpretation placed on

§ 109 by EPA had resulted in a violation of the nondelegation

doctrine, and they sought to have the D.C. Circuit vacate the

PM levels and remand them to EPA. American Trucking

Ass ‘ns, Inc. v. EPA, 175 F.3d 1027, 1034 (D.C. Cir. 1999)

(“American Trucking’’).

Citing the test enunciated by Chief Justice Taft in

J.W. Hampton, Jr. & Co. v. United States, 276 U.S. 394, 409

(1928), the court of appeals agreed with these petitioners:

Although the factors EPA uses in

determining the degree of public health

concem associated with different levels

of ozone and PM are reasonable, EPA

appears to have articulated no

"intelligible principle" to channel its

application of these factors; nor is one

apparent from the statute. The

nondelegation doctrine requires such a

principle.

American Trucking, 175 F.3d at 1034. One may well ask

how the court reached a “reasonableness” determination in

the absence of “intelligible principles.”

This conclusion by the court came after it had given

EPA the opportunity in briefing and in argument to enunciate

such a principle. EPA then petitioned for rehearing and for

rehearing en banc. The former was granted in part and the

latter was denied. American Trucking Ass’ns, Inc. v. EPA,

195 F.3d 4, 6 (D.C. Cir. 1999) (“American Trucking

Rehearing’’). In granting, in part, the petition for rehearing,

the Circuit refused to modify its holding that the

interpretation by EPA had created a potential violation of the

8

nondelegation doctrine, noting that, finally, EPA counsel had

asserted what they believed to be an intelligible principle, but

that whether it was indeed so would depend on its application

in further determinations of NAAQS. /d. at 6-7. Thus, after

multiple rounds of briefing and argument, it appears that the

status of the case, short of this Court's determination, is that

the Circuit has found there to be no articulation of an

"intelligible principle" on which to base the standards issued,

but only such a principle asserted by EPA counsel in its

briefing and argument; no coupling of such a principle to the

standards issued; and, as the Circuit noted, no such principle

“apparent from the statute" itself. Jd. at 6 (citing American

Trucking, 175 F.3d at 1034).

The Round One briefing when considered with the

Circuit decision reveals the dimension of this case. First,

although given little attention other then by the Cross-

Petitioners, the Circuit did indeed rely on its earlier decision

in Lead Industries Ass'n v. EPA, 647 F.2d 1130 (D.C. Cir.

1980) (“Lead Industries”) to predicate its decision here on

the notion that § 109 could not consider cost factors because

none were implicated in the language of the provision.2 The

implications of this approach dictate that only health may be

considered in setting NAAQS. Supporting this approach, one

of the briefing parties noted that

: American Trucking, 175 F.3d at 1038 (“Cost-benefit

analysis ... is not available under decisions of this court. Our

cases read § 109(b)(1) as barring EPA from considering any other

factor other than ‘health effects relating to pollutants in the air.’ ”

(citations omitted)).

9

EPA has estimated that 3,000-15,000

deaths, 6,000-10,000 hospital admissions

for respiratory and cardiopulmonary

causes, tens of thousands of cases of

respiratory illness, and millions of days

of missed work and restricted activity

will be prevented each year just by

PARTIAL attainment of the new

standards.3

Since PMs are thought to be "non-threshold

pollutants" (American Trucking, 175 F.3d at 1034), it would

appear that this camp could advocate that § 109(b)(1)-(2)

compels protection of "public health" and “public welfare” by

the curtailment of all or virtually all these deaths and

illnesses. 42 U.S.C. § 7409(b)(1)-(2). This is an approach

which has been characterized as calling for the "de-

industrialization" of the United States. American Trucking,

175 F.3d at 1038 n.4. Arrayed against this approach is much

of industry taking the position that Lead Industries is wrong

and that if this Court will but overturn that decision, EPA

would be free to consider the economic impact of more

stringent regulation and consider too the cost benefit issues

which they have raised. See, e.g., Brief for Cross-Petitioners

at 27, et seq.

There is little doubt, assuming as we do the validity of

the premises of the competing parties, that this case literally

concerns life and death issues: To what extent is EPA to

determine standards on the basis of who shall live, who shall

3 Brief of Respondent American Lung Association in Support of

Petitioner at 2 (citing Regulatory Impact Analysis (RIA) 12-43,

JA(PM) 3486).

10

die, who shall be well, and who shall suffer respiratory-

related illnesses? The nondelegation issue presented by this

case then is whether Congress has legislated with sufficient

clarity and precision that the Executive Branch can make

decisions on such matters to fulfill a statutorily enunciated,

intelligible principle governing life and health. The answer is

plainly in the negative.

The subsidiary issues concern just what to do about

this problem. The Circuit had two answers: send the case

back to the Executive Branch agency for an explication of the

principles on which THEY relied, and treat the case as a

Chevron? II problem to be solved as though the statute is

merely ambiguous and can be rationalized with the assistance

of the agency. American Trucking, 175 F.3d at 1033;

American Trucking Rehearing, 195 F.3d at 8.

I. THIS COURT’S PRIOR NONDELEGATION

PRECEDENTS DO NOT PROVIDE A

REASONABLY CLEAR BASIS FOR

DETERMINING WHEN CONGRESS HAS

IMPROPERLY DELEGATED ITS

LEGISLATIVE RESPONSIBILITIES

A. A Weak History For Three-Quarters Of A

Century

4 Chevron, U.S.A., Inc. v. NRDC, 467 U.S. 837, 843

(1984) (“[I]f the statute is silent or ambiguous with respect to

the specific issue,” the Court must determine [under step two

of the Chevron test] whether the agency’s interpretation “is

based on a permissible construction of the statute.””)

11

The jurisprudence of this Court on the subject of

nondelegation recognizes that it is a subset of separation of

powers, and its decisions generally take on one of two

characteristics. They either represent the allegedly improper

delegation of a “function” which is reserved to a coordinate

branch, or they represent delegations of lawmaking

responsibilities in the guise of execution of the law; there is

much overlap between the two. Function delegation issues

such as those presented by Morrison v. Olson, 487 U.S. 654

(1988), INS v. Chadha, 462 U.S. 919 (1983), Bowsher v.

Synar, 478 U.S. 714 (1986), Northern Pipeline Constr. Co. v.

Marathon Pipe Line Co. 458 U.S. 50 (1982), and Buckley v.

Valeo, 424 U.S. 1 (1976), are not at issue here. They are

presented with sufficient frequency so that a reasonable

pattern can be ascertained.

This case presents issues of delegation of legislative

responsibilities in the guise of execution, and such cases are

relatively rare. In the Twentieth Century, there have been

remarkably few such decisions and they have provided no

particularly useful guiding principles. Oft quoted, but of

dubious value, is the penultimate statement in J. W. Hampton

that Congress must "lay down by legislative act an intelligible

principle to which the person or body ... is directed to

conform.” 276 U.S. at 409. But the notion of an "intelligible

principle” has little meaning at all and, if manifested solely in

simple adjectives and adverbs, generally cannot guide a

regulatory agency in generating a set of regulations as

complex as those directed to our ambient air.

Which is not to say that the notion has failed to

receive at least some elaboration. It is recognized, however,

5 Field v. Clark, 143 U.S. 649 (1892); Wayman v. Southard,

23 U.S. (10 Wheat.) 1 (1825).

12

that such elaboration has not built an effective set of

standards governing the conduct of Congress in its

lawmaking. National Cable Television Ass'n, Inc. v. U. S.,

415 U.S. 352, 352-353 (1974) (Marshall, J., concurring in

No. 72-1162, & dissenting in No. 72-948). We had two such

decisions of New Deal vintage. In the first, Panama Refining

Co. v. Ryan, 293 U.S. 388, 415 (1935), the application of the

NIRA was rejected because Congress had established "no

criterion to govern the President's course....". Two years later,

the Court again struck down the application of the NIRA in

A.L.A. Schechter Poultry Corp. v. United States, 295 U.S.

495 (1935). Chief Justice Hughes writing in that case noted:

We have repeatedly recognized the

necessity of adapting legislation to

complex conditions involving a host of

details with which the national

legislature cannot deal directly.... [T]he

Constitution has never been regarded as

denying to Congress the mecessary

resources of flexibility and

practicability, which will enable it to

perform its function in /aying down

policies and establishing standards,

_ while leaving to selected

instrumentalities the making of

subordinate rules within prescribed

limits and the determination of facts to

which the policy as declared by the

legislature is to apply.®

6 It would have been possible for the courts thereafter to

employ these terms prescribed by the Chief Justice to delineate

more precisely the “policies,” “standards,” and “prescribed limits”

(Footnote continued on next page)

13

Id. at 529-30 (emphasis added). Justice Cardozo, concurring,

differentiated between “codes” the objectives of which are to

eliminate abuses and those involving the “planning of

improvements.” Jd. at 552. Delegation of the former, he

noted “is borne of the necessities of the occasion.” Jd. As to

the latter, however, he voiced a much more res‘rictive

approach to what may be delegated, having noted tha: the use

of such devices was on the increase (in 1935):

In that view, the function of its adoption

is not merely negative, but positive; the

planning of improvements as well as

the extirpation of abuses. What is fair,

as thus conceived, is not something to

be contrasted with what is unfair or

fraudulent or tricky. The extension

becomes as wide as the field of

industrial regulation. If that conception

shall prevail, anything Congress may do

within the limits of the Commerce

Clause for the betterment of business

may be done by the President upon the

recommendation of a trade association

by calling it a code. This is delegation

running riot. No such plenitude of

power is susceptible of transfer.

Id. These decisions were followed by a seemingly long

hiatus during which they were cast into a limbo borne of the

(Footnote continued from previous page)

which needed to be embodied in legislation, but there was no such

elaboration until Mistretta v. United States, 488 U.S. 361 (1989),

when this Court took up the term “boundaries.” Jd. at 373

(citations omitted).

14

crisis times of their writing. In this period, the complexities

of governance grew exponentially as did the temptation of

Congress to delegate its functions to the Executive Branch.

The courts, however, were reticent about intervening in this

process and therefore, we can “skip” to the 1980s with the

brief stop at Justice Frankfurter’s concurring observation in

1952 that:

The accretion of dangerous power does

not come in a day. It does come,

however slowly, from the generative

force of unchecked disregard of the

restrictions that fence in even the most

disinterested assertion of authority.

Youngstown Sheet & Tube Co. v. Sawyer, 343 U.S. 579, 594

(1952).

The admonitions of Justices Cardozo and Frankfurter

came, apparently, in a period during which war, followed by

huge economic growth, followed by acts of environmental

contrition (among others) had so overloaded the flow of

legislation and growth of bureaucracies that when this Court

finally “got back” to the subject, it would seem that retrieving

control was either impossible or unwise. Then Professor

Antonin Scalia, in 1979, commented on this problem in the

context of the growing practice of “legislative veto” (some

three years before this Court's decision in Chadha) noting the

expanse of the delegations of legislative authority that had

occurred over the preceding fifty years. Scalia, “The

Legislative Veto: A False Remedy for System Overload,”

REG., Nov.-Dec. 1979, 19 (“Scalia, Legislative Veto”). He

commented that delegation devices, with the supposed

restraints of later oversight by Congress were, in many

instances, enabling the legislative branch to preserve "control

15

while relieving the people's representatives of the

embarrassment of voting.” /d. at 25.

B. _A Tentative Effort Starting In 1980

Thus, the problem had transcended accretion or

arrogation of power by the Legislative Branch and had

entered the realm of cession bv that branch either because it

seemed not able to cope or because it had found a means to

avoid hard decisions “too hot to handle.” Scalia, Legislative

Veto, at 24. It would lead Justice Rehnquist to comment in

Industrial Union Dep't v. American Petroleum Inst., 448 -

U.S. 607, 687 (1980) (“Benzene”’):

It is difficult to imagine a more obvious

example of Congress simply avoiding a

choice which was both fundamental for

purposes of the statute and yet politically

so divisive that the necessary decision or

compromise was difficult, if not

impossible, to hammer out in the

legislative forge.

In 1980, and again in 1981, this Court confronted two

cases arising out of the Occupational Safety and Health Act

of 1970, 29 U.S.C. § 651, et seq., the first, popularly known

as “Benzene,” and the second, known as “Cotton Dust,”

American Textile Mfr. Inst., Inc. v. Donovan, 452 U.S. 490

(1981). In those two decisions, we saw the product of fifty

years of Executive Branch growth and the seeming

uncertainty about how to treat the increasing expansion of

legislative delegation practices using no more coherent

"intelligible principles" then the insertion of vague, multi-

meaning adjectives and adverbs.

16

In Benzene, the Court had to deal with two provisions

of the Act neither of which addressed where a health and

safety standard was to begin or to end. Section 3.8 recited

that the standards were to be those "reasonably necessary or

appropriate to provide safe or healthful employment."

29 U.S.C. § 652(8). Section 6(b)(5) required the Secretary of

Labor 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 material impairment

of health or functional capacity." 29 U.S.C. § 655(b)(5).

Missing from either of these phrases was any indication of

whether - or the extent to which - the standard was to address

the economics of its imposition. It was clear that this

omission was not mere inadvertence on the part of Congress

because the excruciating examination of all of the Justices

writing demonstrated that the subject of economics had been

well-understood in the lawmaking process.

The rather sophisticated question at law in Benzene

then was whether, and if so how, the courts (and the

Executive Branch) were to insert considerations of

economics into this pristine language that, to all political

intents and purposes, had no motives other then health and

welfare. The plurality decision affords us no guidance for the

future; only the assurance that the Executive Branch, and

necessarily the courts, would be called upon again to make

these difficult legislative decisions.

Indeed, a year later this very statute and the same

phrases were revisited by this Court in Cotton Dust. Now the

Court was confronted with the need to interpret the word

"feasible" to squeeze out of it at least a meaning that would

enable a consideration of whether some semblance of the

affected industry would survive. Cotton Dust, 452 U.S. at

508-511. And then the Court had to consider the further

implications of whether economic address could include the

17

more esoteric consideration of a cost benefit analysis. There

can be little doubt that the Court, being unelected, had been

imposed upon to make the hard choices that Congress had

refused directly to address. As he had in Benzene, Justice

Rehnquist, now joined by Chief Justice Burger, dissented

noting, inter alia:

I am convinced that the reason that

Congress did not speak with greater

"clarity" was because it could not. The

words "to the extent feasible" were used

to. mask a _ fundamental policy

disagreement in Congress. I have no

doubt that if Congress had been

required to choose whether to mandate,

permit or prohibit the Secretary from

engaging in a cost-benefit analysis,

there would have teen no bill for the

President to sign.

Cotton Dust, 452 U.S. at 546. To this one might add that

"therefore, hereafter, these difficult political, social and

economic decisions will have to be made by the coordinate

branch most widely separated from the voting public."

Cc. The Mistretta Legacy

After these two decisions, there have been no

significant statements from this Court on the subject of

legislative delegation in the guise of execution with the

exception of Mistretta v. United States, 488 U.S. 361 (1989).

That case presented both legislation delegation issues and

function delegation issues. As to the former, this Court

found that there had been sufficient standards and principles

enunciated to guide the Sentencing Commission and that

there was therefore no unconstitutional delegation. Mistretta,

18

488 U.S. at 412. The dissent agreed that there were adequate

principles and standards present in the law, but disagreed

with the conclusion that there was therefore no

unconstitutional delegation. This was because the degree of

authority delegated was "excessive," thus creating a

legislative substructure not intended by the Constitution. /d.

at 419.

This cession of hard choices too hot to handle, is not

within the comprehension of our Constitution. Noting a

similar abandonment of an unpopular task by Congress,

Justice Kennedy, concurring in Clinton v. New York, 524

U.S. 417, 451-52 (1998) (citations omitted), stated:

It is no answer, of course, to say that

Congress surrendered its authority by its

own hand; nor does it suffice to point

out that a new statute, signed by the

President or enacted over his veto,

could restore to Congress the power it

now seeks to relinquish. That a

congressional cession of power is

voluntary does not make it innocuous.

The Constitution is a compact enduring

for more than our time, and one

Congress cannot yield up its own

powers, much less those of other

Congresses to follow... Abdication of

responsibility is not part of the

constitutional design.

The decisions in sum, including those that are

interspersed with those just noted, provide little or no

guidance for the consideration of the instant case. This is not

the product of the lack of sharp lines between what manner or

degree of delegation will or will not pass muster, so much as

19

a seeming acquiescence in the congressional process of

leaving politically sensitive and complex issues to a

coordinate body. In the instant case, we have the specter of

the agency and the courts being called upon to decide - on no

basis ever articulated by Congress - who shall live, who shall

die, who shall be well and who shall not. We have a decision

below that frames no instruction or guidance on the

economics of the provision in question, although there is no

doubt whatsoever that some must exist, lest we return to an

agrarian society. Absent the intervention of this Court, the

Article [I and Article III branches will proceed to do the work

of the Article I branch under a court-imposed structure that

institutionalizes delegation of legislative functions.

Il. CONTEMPORARY REGULATORY

COMPLEXITIES DO NOT REQUIRE

ABANDONMENT OF CONSTITUTIONAL

REQUIREMENTS FOR ENACTMENT OF

REASONABLY PRECISE STATUTORY

PRINCIPLES AND STANDARDS

This case raises nondelegation issues which are more

pervasive than seen in any prior case. Not only are more

Americans affected by the outcome of this case than by any

previously decided, but the impact on their lives extends far

beyond that possible in any prior case of this kind considered

by this Court. This is not a single product case, such as

Benzene. This is not a single industry case such as Cotton

Dust or Schechter Poultry. This is not a case in which the

economic fate of a relatively small portion of our population

might be negatively impacted. This is a case where all

Americans are "users" and "breathers."

The question then may be whether, under such

circumstances, a greater duty of explication is owed by

Congress than if a narrow band of society is implicated and

20

one who's fate may be, in substantial measure, left to experts,

bureaucrats and administrators. We submit that the answer is

clearly in the affirmative. Thirty years ago, Congress had a

duty to say more than that regulations should issue which are

"requisite to protect" the “public health” and “welfare.”

42 U.S.C. § 7409(b)(1)-(2). And if Congress then had no

particularized information on which to base anything more

definitive, it certainly can do better now. The intervening

thirty years has produced a vast array of information on every

conceivable subject relevant to decision-making under this

statute; this much is made clear by the briefings and decision

below and the briefing already presented to this Court.

In Mistretta, this Court stated that, in applying Justice

Taft's "intelligible principle” test the Court's jurisprudence

had 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

directives.” 488 U.S. at 372 (citations omitted).

Unquestionably a society consisting of almost three

hundred million people, in fifty states, two hundred years

after the beginning of the industrial revolution, having the

daily potential of breathing unhealthful air is not susceptible

to a Legislative Branch functioning as a monolith, without a

synergistic relationship with the Executive Branch.

But this Court did not find itself, somehow, bound

because of the growth of our society. Continuing, the

Mistretta Court quoted Panama Refining stating: “The

Constitution has never been regarded as denying to the

Congress the ~ necessary resources of flexibility and

practicality, which will enable it to perform its function.” Jd.

(quoting Panama _ Refining, 293 US. at 421).

Unquestionably, those "resources" include access not only to

21

those who petition their causes, but also the resources of the

much larger and technically proficient Executive Branch.

There is simply no reason why legislation must

proceed solely and singularly from the Legislative Branch

with no advice and guidance from the Executive Branch that

would enable reasonable specificity on such matters as the

economics of the improvement of our ambient air. Knowing

this plain truism, the Mistretta Court concluded on this

subject: “Accordingly, this Court has deemed it

‘constitutionally sufficient if Congress clearly delineates the

general policy, the public agency which is to apply it, and the

boundaries of this delegated authority.’” Jd. at 372-73

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

105 (1946)).

And therefore we must consider just what is meant by

"boundaries," and whether the statute at issue contains such

boundaries. We submit that the boundaries circumscribing

Executive Branch action must take into consideration the

nature of the impact of the act itself. Logically, workplace

control over a ubiquitous chemical such as benzene may

inherently suggest a relatively low degree of boundary

description by Congress before commitment into the hands of

an agency expert in workplace oversight and having access to

all manner of technical advice on risks. Even there, however,

the boundaries need to account for the question of whether,

and the extent to which, the economics of control are to be

considered and the very notion of economic considerations is

certainly capable of manifestation in the words of the statute

itself.

But if the universe of that which is to be legislated

takes on the dimension of the ambient air, and if the objective

is to ensure "health and welfare," we must expect something

more of Congress than the unbounded use of those terms. To

22

do no more, given that we are controlling the air and the

health of our entire population, we would come close to

Professor Scalia's suggestion that the abandonment of a

nondelegation doctrine might suggest that "Congress could

presumably vote all powers to the President and adjourn.”

Scalia, “A Note on the Benzene Case,” REG., July-Aug.

1980, at 28. “Boundaries” must have a meaning that - in fact

- avoids the very issues that are before this Court.

Here, the Circuit had previously imposed an absolute

ban on consideration of the economics of air quality. Lead

Industries, 647 F.2d at 1148. It did so in the absence of any

language - or even words so suggestive as "feasibility" in

§ 109 of the Act: “As this court long ago made clear, in

setting NAAQS under § 109(b) of the Clean Air Act, the

EPA is not permitted to consider the cost of implementing

those standards.” American Trucking, 175 F.3d at 1040

(citing Lead Industries, 647 F.2d at 1148).

"Why," one might ask? The answer seems to lie in

the profound silence of Congress. Notwithstanding the

arguments made to this Court in the First Round briefing, the

reality is that Congress, with plain intent to avoid any

implication that it was trading dollars for lives, simply stood

mute, unquestionably knowing that the very controversy

before this Court would play out over the succeeding years.

See, e.g., Benzene, 448 U.S. at 672 (Rehnquist, J.,

concurring); Cotton Dust, 452 U.S. at 543 (Rehnquist, J.,

dissenting); Scalia, “Legislative Veto,” at 24. And does this

mean that our nation will be deindustrialized and return - at

least - to Mr. Jefferson's agrarian society? The answer was

left for decision, presumably, to EPA, an Executive Branch

agency not even enjoying an official seat in the President's

Cabinet.

23

Imperative also within the certain contemplation of

the Congress was the fact that this legislation by omission

would implicate the Article III branch as the ultimate arbiter

of what Congress might have meant to do. And, indeed, the

economics of clean air is now before this Court which

presumably must decide whether and how to balance life

against cost. In this connection, and not illogically, some of

the briefs before this Court suggest that, notwithstanding the

admonitions in Lead Jndustries, EPA has regularly engaged

in what can be described as “closet economics” to avoid the

thorough illogic of considering such regulations with

deindustrialization as a required objective. See, e.g., Brief for

Cross-Petitioners at 43, et seq.

In the instant case, the D.C. Circuit then proceeded to

build on what else was missing: “The principle EPA invokes

for each increment in stringency ... that it is ‘possible, but not

certain’ that health effects exist at that level ... could as

easily, for any nonthreshold pollutant, justify a standard of

zero.” American Trucking, 175 F.3d at 1036. And, for

contrast, the Court noted that, at the other pole, EPA might

just as easily "justify a refusal to reduce levels below those

associated with London's ‘Killer Fog’ of 1952." Jd. The

remark was apt because, not only were there no boundaries

even suggested for the economics of air quality, there were,

more importantly, none suggested for the air itself. This

meant that Congress had given EPA no political, social, or

economic boundaries from which it could make any

judgments. At this point the issue becomes quite clear: May

Congress legislate with no_ greater specification of

"boundaries" or "intelligible principles" the simple

commandment to the Executive Branch that the air shall be

made clean?

Is this all we should expect from Congress where so

much is at stake? There has not - yet - been an evolution of

24

guidance from this Court which would conclusively answer

this question. But it is very plain that Congress could have

done precisely what the Circuit was required to do and what

this Court is being asked to do - and with no fewer or poorer

tools. The "Petitions" to this Court and the court below were

petitions that should have gone to Congress. It is Congress,

and not the courts, that should have made these ternbly

difficult decisions.

Ill. NONDELEGATION IS NOT SUBSUMED BY

CHEVRON

Despite the D.C. Circuit’s reliance upon /nternational

Union, UAW v. OSHA (“Lockout/Tagout I’), 938 F.2d 1310,

1313 (D.C. Cir. 1991), it is not entirely clear just why the

court thought to send back to an Executive Branch agency a

statute which it had found contained no “intelligible

principle” let alone any "boundaries." The Circuit noted in

its decision and again on rehearing:

Where (as here) statutory language and

an existing agency interpretation involve

an unconstitutional delegation of power,

but an interpretation without the

constitutional weakness is or may be

available, our response is not to strike

down the statute but to give the agency

an opportunity to extract a determinate

standard on its own.

American Trucking, 175 F.3d at 1038 = (citing

Lockout/Tagout I, 938 F.2d at 1313); American Trucking

Rehearing, 195 F.3d at 7 (citing American Trucking, 175

F.3d at 1038). The Circuit justified this approach stating:

25

Accordingly, just as we must defer to an

agency's reasonable interpretation of an

ambiguous statutory term, we must defer

to an agency's reasonable interpretation

of a statute containing only an

ambiguous principle by which to guide

its exercise of delegated authority.

American Trucking Rehearing, 195 F.3d at 8. Adding: “In

sum, the approach of the Benzene case, in which the Supreme

Court itself identified an intelligible principle in an

ambiguous statute, has given way to the approach of

Chevron.” Id. (citing Benzene, 448 U.S. at 642, 646

(Stevens, J., plurality) (interpreting §3(8) of the

Occupational Health and Safety Act to require "a threshold

finding ... that significant risks are present,” thereby finding

the statute an intelligible principle).

We do not fathom how this transition from the

nondelegation doctrine was made notwithstanding the

explanation given. We can find no premise for this transition

in Benzene itself; there is nothing therein to indicate that this

Court was ready to abdicate an approach to separation of

powers that has at least a 150-year vintage. Although some

commentators have suggested that this may be a more

practical approach, it is hardly one that has been even facially

adopted by this Court.

Further, it is not particularly logical to commonalize

the notion of an ambiguous meaning with the absence of any

meaning at all. It is true that where there is at least a thread

of an intent of Congress in words or phrases of a statute

which may be tracked back to the legislative history or the

setting of the lawmaking, the courts may, and probably

26

should, attempt to see if the thread leads to a result of

substance.’ But those circumstances do not represent the

facts in this case, as is amply demonstrated by the remarkably

attenuated attempts by all parties to attach essentially non-

existent substance and vague analogies to the health and

welfare language of § 109. In at least one particular context,

it is most unlikely that the Circuit itself considered that a

further search for reason would yield any new results. This,

of course, has to do with the question of whether the

economics of new standards were for consideration by EPA.

That concept, as previously noted, had been rejected by the

Circuit some twenty years earlier and, without exception,

reinforced against every onslaught thereafter, including in the

instant case. American Trucking, 175 F.3d at 1040; Lead

Industries, 647 F.2d at 1148. In fact, it has been the

conclusion of the Circuit that the provision is NOT

ambiguous in this regard and that it clearly precludes

consideration of the economics of compliance, at least under

§ 109. American Trucking, supra, at 1040.

Nor is it conceptually unreasonable for the Circuit to

give the agency the opportunity to clarify its conclusions

against the meaning of the statute in other regards, such as

enunciating the point along the continuum of clean to dirty at

which Congress intended the agency to light. But, as the

Circuit itself noted, neither the original EPA documentation,

nor the briefings twice over, nor the arguments made in the

7 In International Union v. OSHA, 37 F.3d 665 (1994), it

took five years and two trips to the circuit for the agency to find

sufficient threads to overcome a nondelegation determination; and

at that, it was plainly a close call and required maximum

“fudging” on whether intelligible principles permitted a cost-

benefit analysis.

27

case (presumably, either by the agency or the petitioners or

any amici) had accomplished that task. The Circuit noted

after rehearing:

Indeed, the EPA's briefs in each of these

two cases contained the same four

sentences assuring the court that the

Statute provides a principle without

explaining what the agency understands

that principle to be.

** *

These sentences begged the key question

about that intelligible principle: "What

is it?”

American Trucking Rehearing, 195 F.3d at 7. And the case,

as it arrives before this Court, has no better elucidation.

There must be a time when the possibility of an ambiguity

that can be clarified must give way to the greater likelihood

that what is missing truly is simply not there. While no one

would go so far as to suggest the imposition of the rule of

contra proferentum against Congress, in the present factual

setting, as we have previously noted, much more must be

expected of the lawmaking body.

The application of Chevron to _ emasculate

nondelegation is not an attractive approach to consideration

of constitutionality of laws for another reason. That reason

has to do with the disciplines which we are entitled to expect

of the lawmaking body. We have noted the increasing

commentary of the courts, including this one, and other

writers in the field, to the effect that Congress is passing its

too-hot-to-handle issues to its coordinate branches. See, e.g.,

Benzene, 448 U.S. at 672 (Rehnquist, J., concurring); Cotton

28

Dust, 452 U.S. at 543 (Rehnquist, J., dissenting); Scalia,

“Legislative Veto,” at 24. If the guise of ambiguity and the

application of Chevron II is allowed to trench this practice,

what we have seen in this case, in Benzene and in others such

as Cotton Dust will surely become an established practice of

overwriting intentional political omissions in difficult

legislation.

That just this problem is already emerging is

suggested by the fact that even though Chevron was decided

in 1984, there have been at least 45 D.C. Circuit cases

requiring Chevron II examination since 1992. See, e.g., First

American Discount Corp. v. Commodity Futures Trading

Comm'n, No. 99-1098, 2000 WL 1099978, at *4 (D.C. Cir.

Aug. 18, 2000) (most recent case to require Chevron II

examination); Society of Plastics Indus., Inc. v. ICC, 955

F.2d 722, 727-729 (D.C. Cir. 1992) (first case in 1992 to

require Chevren I] examination).

As recently as July of this year, the same Circuit again

had to visit the Clean Air Act under the Chevron II doctrine,

in that case § 112(i)(3) to figure out, against a silent statute,

whether requirements for expediting compliance could be

imposed. Chemical Mfrs. Ass'n v. EPA, 217 F.3d 861 (D.C.

Cir. 2000).

IV. THE OVERTURNING OF § 109 OF THE

CLEAN AIR ACT WOULD NOT DISRUPT THE

NATION’S EFFORTS TO REGULATE AIR

POLLUTION

These amici have no interest in disrupting, delaying

or otherwise making even more difficult the implementation

and management of this complex and very important statute.

They DO have a profound interest in knowing that they will

be required to comply with an empowering law and rationally

29

law-based regulations that reflect the will of Congress. They

have a further interest in knowing that their rights and

opportunities of petition to that elected body will be requited

by actual language in the law that sets forth intelligibic

principles, standards, and boundaries to guide EPA. We

believe this provision of the law must be returned to its

maker for such standards, principles and boundaries that

enable implementation considering where, in the continuum

of clean air they are to be and how the economics of

compliance are to be addressed.

It is our further view that this Court is well able to

fashion a means for this purpose which will impose no

hardship on the American public. This Court can, of course,

Stay its judgment to enable remedial legislation. See,

Northern Pipeline Constr. Co. v. Marathon Pipeline Co., 458

U.S. 50, 88-89 (1982). And Congress certainly would not be

writing on a clean slate devoid of criteria to guide its

consideration. As we have previously noted, the Circuit

decision and the very extensive briefings to this Court

demonstrate that the universe of considerations is well-

articulated already. Petition of these considerations should

be before the Article I Branch on issues so fundamental and

should not, in the first instance, be relegated to a regulatory

agency.

CONCLUSION

The decision of the Court of Appeals should be

reversed. This Court should hold that the nondelegation

principles of the Constitution have been violated by the ©

absence from § 109 of intelligible principles, standards, and

boundaries by which EPA may reasonably effectuate a

regulatory process and that the provision is therefore

unconstitutional.

30

DATED: September 11, 2000

Respectfully submitted,

Herbert L. Fenster*

Lawrence S. Ebner

Monica A. Aquino

McKENNA & CUNEO, L.L.P.

1900 K Street, N.W.

Washington, D.C. 20006

(202) 496-7500

*Counsel of Record for Amici

Curiae

dO