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

CAROL M. BROWNER, ADMINISTRATOR OF THE

f ENVIRONMENTAL PROTECTION AGENCY, ET AL.

Petitioners,

v.

AMERICAN TRUCKING ASSOCIATIONS, INC., ET AL.,

: ON WRIT OF CERTIORARI TO THE es

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STAVALABLE COPY

QUESTION PRESENTED

Whether Sections 108 and 109 of the Clean Air Act, 42

U.S.C. §§ 7408 and 7409, as interpreted by the Environmental

Protection Agency (EPA) in setting revised National Ambient

Air Quality Standards (NAAQS) for ozone and particulate

matter, effect an unconstitutional delegation of legislative power.

ii

TABLE OF CONTENTS

SE PUMUNEED cove civcctssoecevveesocces

SR ee FP OIENEEED 6 ccc cede cedecncscccccves ill

INTEREST OF AMICUS CURIAE ...................

INTRODUCTION AND SUMMARY OF ARGUMENT ..

EL £54 G Awa dKOETENEASODECEC banked eb OODeNes

I. THE NONDELEGATION DOCTRINE

VINDICATES IMPORTANT PRINCIPLES

OF GOVERNMENT ACCOUNTABILITY .......

II. THE NEED FOR THE NONDELEGATION

DOCTRINE IS MORE ACUTE THAN EVER ....

Ill. SECTIONS 108 AND 109, AS INTERPRETED

BY EPA, ARE INVALID UNDER

THE NONDELEGATION DOCTRINE .........

IV. EPA’S DEFENSES OF ITS STATUTORY

CONSTRUCTION ARE FLAWED.............

8 PPP POTT TCT TTT TERT CT TT TTT TT TTT ee

TABLE OF AUTHORITIES

Cases: Page:

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

295 U.S. 495 (1938S) .. 0 000008000088000n eee 7, 10

Alden v. Maine, 119 S. Ct. 2240 (1999) ................. 5

American Petroleum Inst. v. EPA,

216 F.36 50 (D.C. Cle. BOGE coc vcvsccctunneeeee 11

American Petroleum Inst. v. EPA,

196 F.3d 275 (D.C. Cis. IDFR) . cc ccesseseneneeeee 12

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

452 U.S. 490 (1961) 2.06 cccccceceuneee eee 9

Appalachian Power Co. v. EPA, 208 F.3d 1015

(D.C. Cle. 2008)... «sv cccesecnccnn nee 12

Association of Battery Recylers, Inc. v. EPA,

208 F.3d 1047 (D.C. Cis. SRGRD o.oo cssvcscuaueueuee 11

AT&T Corp. v. lowa Util. Bd., 525 U.S. 366 (1999) ....... 9

Bowsher v. Synar, 478 U.S. 714 (1986) ...... 0.0... 0.0 e es 9

Carter v. Carter Coal Co., 298 U.S. 238 (1936) .......... 7

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

(D.C. Cle. 20GB) oc evccccesccsusuunen nee 11

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

Council, 467 U.S. S37 (1964)... cccccccscccccess 3,17

Chicago v. Morales, 527 U.S. 41 (1999) .........200008, 9

Chlorine Chem. Council v. EPA, 206 F.3d 1286

(D.C. Cle. FOR)... cecccccnsesseunueeuen eee 12

City of Boerne v. Flores, 521 U.S. 507 (1997) ........... 5

Clinton v. City of New York, 524 U.S. 417 (1998) ..... 9,11

Columbia Falls Aluminum Co. v. EPA,

139 F.3d 914 (D.C. Cis. ISDE) . cc cccccscvcuueuenen 12

Field v. Clark, 143 U.S. 649 (1892) ......... 2... e eee 6

Florida Prepaid Postsecondary Educ. Expense Bd. v.

College Savings Bank, 119 S. Ct. 2199 (1999) ........ 5

Greene v. McElroy, 360 U.S. 474 (1959) .........0 2c eee 7

iv

Cases (continued): Page:

Hampton v. Mow Sun Wong, 426 U.S. 88 (1976) ......... 8

Industrial Union Department, AFL—CIO v. American

Petroleum Institute, 448 U.S. 607 (1980)... .. 8-9, 13, 22

INS v. Chadha, 462 U.S. 919 (1983) ... 2.000.000.4005. 9,12

International Union UAW v. OSHA,

Soe Fae LIC CDC. Cir. 1991) 2... ccc cc cccees 22-23

James B. Beam Distilling Co. v. Georgia,

EEE 17

Jones v. United States, 120 S. Ct. 1904 (2000) ........... 4

Kent v. Dulles, 357 U.S. 116 (1958) ........000.000002.. 8

Kimel v. Florida Bd. of Regents, 120 S. Ct. 631 (2000) .... 5

Kolender v. Lawson, 461 U.S. 352 (1983) .............. 10

Lechmere, Inc. v. NLRB, 502 U.S. 527 (1992) .......... 18

Lignite Energy Council v. EPA, No. 98-1525,

1999 U.S. App. LEXIS 26263

i Ds oscccccnccccccceccccces 12

Loving v. United States, 517 U.S. 748 (1996) .... 3, 6, 26, 28

Maislin Indus., Inc. v. Primary Steel, Inc.,

EEE 18

McGautha v. California, 402 U.S. 183 (1971) .......... 11

Metropolitan Washington Airports Authority v. Citizens

for the Abatement of Aircraft Noise, Inc.,

EEE 9

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

DPC hebeeeeneesocecocccecce 3, 6, 7, 16, 26

Motor Vehicle Mfrs. Ass'n v. State Farm Mut.

Auto. Ins. Co., 463 U.S. 29 (1983) . 2.20. eee 24

National Cable Television Ass'n v. United

ee oe cock ccccncceses 7

New York v United States, 50S U.S. 144 (1992) .......... 5

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

hee kbeehnebeceeseees ccs 6, 10, 21-22, 30

Printz v United States, 521 U.S. 898 (1997) ............. 5

Cases (continued): Page:

Seminole Tribe of Fla. v. Florida, 517 U.S. 44 (1996) ..... 5

United States v. Lopez, 514 U.S. 549 (1995) .......... 4,29

United States v. Morrison, 120 S. Ct. 1740 (2000) ........ 4

United States v. Robel, 389 U.S. 258 (1967) ............ 11

United States v. Touby, 500 U.S. 160 (1991)....... 3, 26, 27

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

PP rrrrrrrre sry er rrr Tr rre 2, 6, 20

Statutory and Administrative Materials: Page:

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

Section 108, 42 U.S.C. § 7408 ................ passim

Section 109, 42 U.S.C. § 7409 ................ passim

yy - oii | >) | rrr Te 16

Providing Reorganization Authority to the President,

Hearings on H.R. 3131, H.R. 3407, and H.R. 3442

Before the Legislation and Nat’! Security Subcomm.

of the House Comm. on Government Operations,

95th Cong. (1977)... 2.0... cccceccccceeeeeeeeees 13

122 Cong. Rec. H10,685 (Sept. 21, 1976) .............. 1

122 Cong. Rec. H10,673 (Sept. 21, 1976) .............. 11

61 Fed. Reg. (1996)

PCLT ANT OP bers Sere gE. 20

SEMEL. « cwntaknacenatyditdas alas 26

a aos cee dL 25

62 Fed. Reg. (1997)

“RRA Peer Se or hee Pe 20

SES ve al 25

ee a a 24

EPA, Review of the National Ambient Air Quality

Standards for Particulate Matter: Policy

Assessment of Scientific and Technical Information:

OAQPS Staff Paper (July 1996) ..............-555. 24

vi

Statutory and Administrative Materials (cont’d): Page:

EPA, Innovative Strategies and Economics Group

Regulatory Impact Analyses for the Particulate

Matter and Ozone National Ambient Air Quality

Standards and Proposed Regional Haze Rule (1997) .. . 23

EPA, Office of Air and Radiation, The Benefits and Costs

of the Clean Air Act: 1970 to 1990 (1997) ........... 23

Miscellaneous: Page:

Peter H. Aranson, Ernest Gellhorn & Glen O. Robinson,

A Theory of Legislative Delegation,

GS COMPGIAA. E. BUBV. BCIDEED cccccccccccccccccces 14

Lisa Schultz Bressman, Schechter Poultry at the

Millennium: A Delegation Doctrine for the

Administrative State, 109 YALE L.J.

PEPE dudoadededoeccosedabesstdubeecs cues 14

Stephen Breyer, The Legislative Veto After Chadha,

Pe SED Kéddevencebecedcinedcurces 13

Kenneth Culp Davis, ADMINISTRATIVE LAW OF THE

SEED « odinodutaldedanicduuuididunnes 13

John Hart Ely, DEMOCRACY AND DisTRUST (1980) ...... 13

THE FEDERALIST No. 47 (Clinton Rossiter ed., 1961) ..... 10

Ernest Gellhorn, Returning to First Principles,

36 AM. U. L. REV. 345 (1987) .................... 14

Ernest Gellhorn & Paul Verkuil, Controlling

Chevron-Based Delegations,

20 CARDOZO L. REV. 989 (1999) .................. 14

Paul Gewirtz, The Courts, Congress, and Executive

Policy-Making: Notes on Three Doctrines,

40 LAw & CONTEMP. PRoBS. 46 (1976) ............. 14

Marci A. Hamilton, Representation and Nondelegation:

Back to Basics, 20 CARDOZO L. REV. 807 (1999)

John Locke, Two TREATISES OF GOVERNMENT

(2d Treatise, New American Library 1965) .......... 10

Vii

Miscellaneous (continued):

Theodore J. Lowi, THE END OF LIBERALISM (1969) .....

Theodore J. Lowi, THE END OF LIBERALISM, THE

SECOND REPUBLIC OF THE UNITED STATES (1979)

Theodore J. Lowi, Two Roads to Serfdom: Liberalism,

Conservatism, and Administrative Power,

BO EGR. Gb Ee GP EED co cccevccccccceccess

John F. Manning, Textualism as a Nondelegation

Doctrine, 97 COLUM. L. REV. 673 (1997) ..........

Judge Carl McGowan, Congress, Court, and Control

of Delegated Power, 77 COLUM. L. REV. 1119

ALLE LEELA SLE LLL SLID OAS OF

William A. Niskanen, Legislative Implications of

Reasserting Congressional Authority Over

Regulations, 20 CARDOZO L. REV. 939 (1999) ......

David Schoenbrod, POWER WITHOUT RESPONSIBILITY:

How CONGRESS ABUSES THE PEOPLE THROUGH

ED idcccdconebecesdedebses secs

David Schoenbrod, Symposium — The Phoenix Rises

Again: the Nondelegation Doctrine from

Constitutional and Policy Perspectives:

Delegation and Democracy,

20 CARDOZO L. REV. 731 (1999) .............005.

Bernard Schwartz, Of Administrators and Philosopher-

Kings: The Republic, The Laws, and Delegations

of Power, 72 Nw. U. L. REV. 443 (1978) ...........

Sidney A. Shapiro & Richard E. Levy, Heightened

Scrutiny of the Fourth Branch: Separation of

Powers and the Requirement of Adequate

Reasons for Agency Decisions,

FEET REET cdecvecescccedesecsesocecces

Nadine Strossen, Delegation as a Threat to Liberty,

20 CARDOZO L. REV. 361 (1999) ...........22055.

J. Skelly Wright, Beyond Discretionary Justice,

BS VARB Ea. Fee CEU 0 oc ccccccccescccceccecece

INTEREST OF AMICUS CURIAE

The General Electric Company (“GE”) is a diversified

manufacturing and financial services company headquartered in

Fairfield, Connecticut.' GE has numerous business units that

provide a broad spectrum of goods and services throughout the

United States and the world, including aircraft engines,

appliances, capital services, industrial systems, lighting, medical

systems, the NBC television network, plastics, power systems,

and transportation systems.

GE’s wide-ranging business activities are subject not only to

the Clean Air Act, but all manner of administrative regulation.

Accordingly, GE has an interest in the continuing vitality and

proper implementation of the nondelegation doctrine of Article

I of the Constitution and the separation of powers. The

nondelegation doctrine ensures that important policy choices are

made by the democratically accountable legislature, not by

unelected agency officials. Because of the diversity of GE’s

business activities, it has broad experience from which to offer

helpful guidance to this Court on the need for vigorous

enforcement of the nondelegation doctrine.

INTRODUCTION AND SUMMARY OF ARGUMENT

The Court of Appeals correctly held that EPA’s interpretation

of Sections 108 and 109 of the Clean Air Act, 42 U.S.C. §§ 7408

and 7409, would violate the nondelegation doctrine. These

provisions, as construed by EPA, do not merely authorize the

agency to carry out or implement the statutory directives enacted

by Congress, but effectively deputize EPA to engage in

lawmaking. \n administering Sections 108 and 109, EPA is

' Pursuant to Rule 37.6 of the Rules of this Court, amicus states that no

counsel for a party authored this brief in whole or in part, and that no person

or entity other than amicus, its members, or its counsel, has made any

monetary contribution to the preparation or submission of this brief. Pursuant

to Rule 37.3, amicus states that the parties have consented to the filing of this

brief. Letters of consent have been filed with the Clerk of this Court.

2

going further than applying statutory factors prescribed by

Congress or, in Chief Justice Marshall’s words, “fill[ing] up the

details” under the general provisions made by Congress.

Wayman v. Southard, 23 U.S. (10 Wheat.) 1, 43 (1825).

EPA itself takes the view that “nothing in the statute requires

[the Administrator] to make any specific ‘findings’ or to

structure her decisionmaking in any particular way” before

revising a National Ambient Air Quality Standard (NAAQS).

Final Brief of EPA in American Trucking Assns., Inc. v. EPA,

No. 97-1441, at 43 (D.C. Cir. filed Sept. 14, 1998). The

Administrator need not even make a finding that her regulatory

action is needed to protect against a “significant risk of harm.”

Id. “Nor is EPA required to follow any particular paradigm of

decisionmaking.” /d. at 29. Instead, according to EPA, Section

109 gives the Administrator broad authority to revise a NAAQS

to any level that in her sole judgment reflects a “sufficient” level

of risk reduction. /d. at 10,29. “[{T]he final choice of a standard

is a quintessential policy judgment within the discretion of

EPA,” even though “[s]uch decisions present complex questions

of science, law, and social policy.” /d at 28, 29 (internal

quotations omitted). Hence, in issuing the rules under review,

“EPA made policy judgments . . . concerning the point at which

risks would be reduced sufficiently to protect public health with

an adequate margin of safety.” /d. at 10.

Hence, this case illustrates the very dangers addressed by the

nondelegation doctrine — the risks that Congress will abdicate

responsibility over critical policy judgments and that politically

unaccountable agencies will seize the power to pursue their own

policy agendas, asserting their own “discretion” 2° a shield to

prevent meaningful judicial review.

The Government insists that Sections 108 and 109 satisfy the

nondelegation doctrine beeause “EPA considers, among other

public factors, the nature and severity of health effects, the types

of health evidence, the kind and degree of uncertainties involved,

and the size and nature of the sensitive populations at risk.”

Govt. Br. in No. 99-1257, at 5. But these factors have been

3

selected by EPA. They were not adopted by Congress, and they

are not set forth in the statute. This Court should make clear that

an agency’s self-imposed restraints cannot satisfy the

requirements of the nondelegation doctrine that Congress codify

adequate limits on agency action. The remand to the EPA

ordered by the Court of Appeals in this case must therefore

involve a search for congressionally enacted guidelines and

boundaries, not simply an exercise of the agency’s own

discretion to formulate voluntary — and potentially temporary —

limits to its rulemakings.

Further, the factors articulated by EPA fail to provide

sufficient guidance to confine the agency and do not allow for

meaningful judicial review of its decisions. The lack of clear

congressional standards limiting EPA, coupled with the agency’s

unfettered discretion to establish its own guideposts, ensures that

there is no adequate check on EPA’s decisionmaking. The

balance of authority contemplated by the separation of po

does not exist.

The Government suggests that the delegation here is no more

expansive than those upheld by this Court in such cases as

Mistretta v. United States, 488 U.S. 361 (1988), United States v.

Touby, 500 U.S. 160 (1991), and Loving v. United States, 517

U.S. 748 (1996). That suggestion is false. In this case, Congress

provided EPA with substantially /ess in the way of limiting

standards and criteria for administrative decisionmaking than in

any of the other cases cited by the Government. The delegation

in this case is far beyond any upheld by this Court under the

modern nondelegation doctrine.

The need for a vigorous nondelegation doctrine has only been

heightened by the power accorded to administrative agencies

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

467 U.S. 837 (1984). Chevron announced a rule of deference to

reasonable agency interpretations of ambiguous statutory

provisions. Judicial deference to agency constructions of

“ambiguous” statutory language presents risks to the

constitutionally mandated separation of powers and principles of

4

legislative accountability. Without a vigorous nondelegation

doctrine, agencies will be able to “find” ambiguities in ordinary

language in order to arrogate to themselves the power essentially

to make law — even though the unfettered ability to define as the

law of the land any rationally supportable version of what a

statute’s words might mean is the very essence of the legislative

authority granted to Congress by Article I.

In United States v. Lopez, 514 U.S. 549 (1995), this Court

recognized limits on Congress’ power under the Commerce

Clause in no small part because of a realization that the

Government’s constitutional theory knew no bounds. See 514

U.S. at 564. The same considerations are applicable here: if

EPA’s interpretation of Sections 108 and 109 were upheld, then

virtually any congressional delegation of authority to an

administrative agency would become permissible. Accordingly,

this case presents an important opportunity not only to affirm the

Court of Appeals’ judgment invalidating EPA’s unlawfully

expansive interpretation of Sections 108 and 109 of the Clean

Air Act, but also to establish a broader precedent affirming the

continuing vitality of the nondelegation doctrine.

The judgment of the Court of Appeals invalidating EPA’s

interpretation of Sections 108 and 109 accordingly should be

affirmed.

ARGUMENT

This case presents an important opportunity to reaffirm the

limits on governmental power reflected in the nondelegation

doctrine, just as a series of recent cases has enabled this Court to

revitalize other notable restraints upon congressional and

executive power. For example, this Court has affirmed the limits

of the Article I commerce power. See Jones v. United States, 120

S. Ct. 1904 (2000) (construing federal arson statute narrowly);

United States v. Morrison, 120 S. Ct. 1740 (2000) (striking down

civil suit provision in Violence Against Women Act); United

States v. Lopez, 514 U.S. 549 (1995) (invalidating Gun-Free

School Zones Act).

Similarly, this Court has held that Congress, acting under its

Article I legislative powers, may not abrogate state Eleventh

Amendment immunity by subjecting states to suit in federal

court. Seminole Tribe of Fla. v. Florida, 517 U.S. 44 (1996).

Congress may not commandeer state legislative processes or

require state executive officials to enforce federal law. New York

v United States, 505 U.S. 144 (1992) (nuclear waste statute);

Printz v United States, 521 U.S. 898 (1997) (Brady law). Nor

may Congress force a state to entertain a federal suit in state

court. Alden v. Maine, 119 S. Ct. 2240 (1999) (federal overtime

Statute).

In addition, this Court has proclaimed important limits on

federal power under Section 5 of the Fourteenth Amendment.

City of Boerne v. Flores, 521 U.S. 507 (1997) (Religious

Freedom Kestoration Act); Florida Prepaid Postsecondary Educ.

Expense Bd. v. College Savings Bank, 119 S. Ct. 2199 (1999)

(patent remedy statute); Kimel v. Florida Bd. of Regents, 120 S.

Ct. 631 (2000) (Age Discrimination in Employment Act).

Just as these cases have offered this Court the opportunity to

articulate basic substantive restraints on federal power in other

contexts, the instant proceeding presents this Court with an

opportunity to reaffirm the even more fundamental structural

limits on governmental power imposed by the nondelegation

doctrine. The need to reinvigorate the nondelegation doctrine is

especially acute because that doctrine restrains not only

legislative power — by preventing Congress from abdicating its

responsibility for basic policy choices — but also executive

authority, by preventing agencies from exercising the power to

“make law.”

I. THE NONDELEGATION DOCTRINE

VINDICATES IMPORTANT PRINCIPLES OF

GOVERNMENT ACCOUNTABILITY.

Under Article I and the separation of powers, “the lawmaking

6

function belongs to Congress . . . and may not be conveyed to

another branch or entity.” Loving v. United States, 517 U.S. 748,

758 (1996). “Legislative power is nondelegable. Congress can

no more ‘delegate’ some of its Article I power to the Executive

than it could ‘delegate’ some to one of its committees. What

Congress does is to assign responsibilities to the Executive rh,

Id. at 777 (Scalia, J., concurring in part and concurring in the

judgment). The distinction is between impermissible delegation

of lawmaking functions and permissible delegations of

responsibility to execute or administer the laws:

The true distinction . . . is between the delegation of

power to make the law, which necessarily involves a

discretion as to what it shall be, and conferring authority

or discretion as to its execution, to be exercised under and

in pursuance of the law. The first cannot be done; to the

latter no valid objection can be made.

Loving, 517 U.S. at 758-59 (quoting Field v. Clark, 143 U.S.

649, 693-94 (1892)). The nondelegation doctrine mandates that

Congress provide, at the very least, an “intelligible principle” to

guide the exercise of power conferred on another branch.

Mistretta v. United States, 488 U.S. 361, 372 (1989). Only then

is the executive able, as Chief Justice Marshall expressed it, “to

fill up the details” under the general provisions made by the

legislature. Wayman v. Southard, 23 U.S. (10 Wheat.) 1, 43

(1825). “The intelligible-principle rule seeks to enforce the

understanding that Congress may not delegate the power to make

laws and so may « -‘egate no more than the authority to make

policies and rules that implement its statutes.” Loving, 517 U.S.

at 771.

In a series of decisions which remain governing precedent

today, this Court has established important limits on the power

of Congress to delegate authority to regulatory agencies. In

Panama Refining Co. v. Ryan, 293 U.S. 388, 415 (1935), this

Court invoked the nondelegation doctrine to invalidate an

J

Executive Order regulating interstate shipments of oil under the

National Industrial Recovery Act. The Court held that the Act

“establishes no criterion to govern the President’s course. It does

not require any finding by the President as a condition of his

action. . . . So far as this section is concerned, it gives to the

President an unlimited authority to determine the policy and to

lay down the prohibition, or not to lay it down, as he may see

fit.” Id. at 415. |

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

495, 529 (1935), this Court invalidated a statute purporting to

delegate the authority to adopt codes of industrial conduct

implementing the capacious standard of “fair competition.” This

Court opined that “[t]he Congress is not permitted to abdicate or

to transfer to others the essential legislative functions with which

it is thus vested.” Jd. at 529. As Justice Cardozo putsit, the

legislation exemplified “delegation running riot,” which created

a “roving commission to inquire into evils and upon discovery

correct them.” /d. at 551, 553 (concurring opinion).

And in Carter v. Carter Coal Co., 298 U.S. 238, 311 (1936),

this Court applied Schechter Poultry to strike down a provision

of the Bituminous Coal Conservation Act of 1935 delegating

power to fix maximum hours of labor and minimum wages.

These cases remain governing precedent. Indeed, this Court

has often applied the nondelegation doctrine to give “narrow

constructions to statutory delegations that might otherwise be

thought to be unconstitutional.” Mistretta v. United States, 488

U.S. 361, 373 n.7 (1989). In National Cable Television Ass’n v.

United States, 415 U.S. 336, 342 (1974), for example, this Court

cited Schechter Poultry with approval to support a narrow

construction of a federal statute empowering the Federal

Communications Commission to impose and collect certain fees

from cable operators. The Court opined that serious

constitutional questions would be raised by a congressional

delegation of general taxing authority to an administrative

agency. /d.

8

In Greene v. McElroy, 360 U.S. 474 (1959), this Court

refused to find an implicit congressional delegation of authority

to the Department of Defense to administer a constitutionally

questionable security clearance program. In the absence of a

specific delegation, the agency was not empowered to act:

“Without explicit action by lawmakers, decisions of great

constitutional import and effect would be relegated by default to

administrators who, under our system of government, are not

endowed with authority to decide them.” Jd. at 507; see also

Kent v. Dulles, 357 U.S. 116, 129 (1958) (refusing to construe

federal legislation as delegating to the Secretary of State the

power to deny passports to persons refusing to disclose whether

they had ever been Communists). Similarly, in Hampton v. Mow

Sun Wong, 426 U.S. 88, 114 (1976), this Court held that the

United States Civil Service Commission could not rely on

foreign policy objectives in defending a regulation denying civil

service jobs to resident aliens because Congress had not

delegated foreign policy responsibilities to the Commission.

Moreover, Justice (now Chief Justice) Rehnquist recognized

the continuing relevance of nondelegation principles in

Industrial Union Department, AFL-CIO v. American Petroleum

Institute, 448 U.S. 607 (1980), which invalidated an occupational

benzene standard promulgated under the Occupational Safety

and Health Act of 1970:

[M]ly colleagues manifest a good deal of uncertainty, and

ultimately divide over whether the Secretary produced

sufficient evidence that the proposed standard for benzene

will result in any appreciable benefits at all. This

uncertainty, | would suggest, is eminently justified. . .. I

would also suggest that the widely varying opinions of

[my colleagues] demonstrate, perhaps better than any

other fact, that Congress, the governmental body best

suited and most obligated to make the choice confronting

us in this litigation, has improperly delegated that choice

to the Secretary of Labor and, derivatively, to this Court.

9

Id. at 672 (Rehnquist, now C.J., concurring in the judgment).

Canvassing the legislative history, Chief Justice Rehnquist

concluded that it “contains nothing to indicate that the language

‘to the extent feasible’ does anything other than render what had

been a clear, if somewhat unrealistic, standard largely, if not

entirely, precatory.” Jd. at 681-82; see also American Textile

Mfrs. Institute, Inc. v. Donovan, 452 U.S. 490, 543 (1981)

(Rehnquist, now C.J., dissenting) (reiterating that the OSH Act

was an improper delegation).

In recent years, this Court has invalidated at least four

additional delegations of legislative authority. In INS v. Chadha,

462 U.S. 919 (1983), this Court held that Congress may not

delegate power to one or even both of its Houses. In Bowsher v.

Synar, 478 U.S. 714 (1986), this Court held that Congress may

not delegate authority over other than purely internal matters to

an officer answerable to it. In Metropolitan Washington Airports

Authority v. Citizens for the Abatement of Aircraft Noise, Inc.,

501 U.S. 252 (1991), this Court held that Congress may not

delegate decisionmaking authority to an airport “board of

review” composed of nine members of Congress.

Most recently, and perhaps most significantly, in Clinton v.

City of New York, 524 U.S. 417 (1998), this Court held that

Congress may not empower the President to exercise a line item

veto. Although this Court did not explicitly address the question

whether the statute impermissibly delegated to the President the

quintessentially legislative power to choose policy ends, id. at

448, the Court opined that the statute improperly “authorize[d]

the President himself to effect the repeal of laws, for his own

policy reasons,” and that “whenever the President cancels an

item of new direct spending or a limited tax benefit he is

rejecting the policy judgment made by Congress and relying on

his own policy judgment.” /d. at 444, 445 (emphasis added); see

also Chicago v. Morales, 527 U.S. 41 (1999) (holding violative

of due process an ordinance delegating police unguided

discretion to order those “loitering” in public with “gang

members” to disperse or be prosecuted criminally); AT&T Corp.

10

v. lowa Util. Bd., 525 U.S. 366, 388 (1999) (invalidating FCC’s

interpretation of network element “unbundling” requirements of

1996 federal Telecommunications Act because agency

construction failed to contain “limiting standards”); Kolender v.

Lawson, 461 U.S. 352, 358, 359 (1983) (holding that “a

legislature [must] establish minimal guidelines to govern law

enforcement” and may not “entrust[] lawmaking to the moment-

to-moment judgment of the policeman on his beat”).

Il. THE NEED FOR THE NONDELEGATION

DOCTRINE IS MORE ACUTE THAN EVER.

The principles that lie at the heart of the nondelegation

doctrine remain at least as relevant today as they were when this

Court decided Panama Refining and Schechter Poultry. Indeed,

those principles are timeless. Quoting Montesquieu, James

Madison wrote in Federalist 47: “When the legislative and

executive powers are united in the same person or body, . . . there

can be no liberty, because apprehensions may arise lest the same

monarch or senate should enact tyrannical laws to execute them

in a tyrannical manner.” THE FEDERALIST No. 47, at 303

(Clinton Rossiter ed., 1961). John Locke similarly expressed the

view that “[t]he power of the Legislative being derived from the

People by a positive voluntary Grant and Institution, can be no

other, than what the positive Grant conveyed, which being only

to make Laws, and not to make Legislators, the Legislative can

have no power to transfer their Authority of making Laws and

place it in other hands.” John Locke, Two TREATISES OF

GOVERNMENT 408-09 (2d Treatise, New American Library

1965).

Limits on delegations of power are necessary to foster the

political processes that check congressional action. Open-ended

delegations are objectionable because they permit responsibility

for government action to pass out of the hands of Congress and

thereby undermine this electoral check. As Congressman Levitas

once acknowledged: “When hard decisions have to be made, we

11

pass the buck to the agencies with vaguely worded statutes.” 122

Cong. Rec. H10,685 (Sept. 21, 1976). One of his colleagues

added: “[T]}hen we stand back and say when our constituents are

aggrieved or oppressed by various rules and regulations, ‘Hey,

it’s not me. We didn’t mean that. We passed this well-meaning

legislation ....’” Jd. at H10,673 (statement of Rep. Flowers).

Justice Brennan trenchantly observed: “[F Jormulation of policy

is a legislature’s primary responsibility, entrusted to it by the

electorate, and to the extent Congress delegates authority under

indefinite standards, this policy-making function is passed on to

other agencies, often not answerable or responsive to the same

degree to the people.” United States v. Robel, 389 U.S. 258, 276

(1967) (concurring opinion). In short, “[aJbdication of

responsibility is not part of the constitutional design.” Clinton

v. City of New York, 524 U.S. at 452 (Kennedy, J., concurring);

see also McGautha v. California, 402 U.S. 183, 250 (1971)

(Brennan, J., dissenting) (basic policy choices must “be made by

a responsible organ of state government. For if they are not, the

very best that may be hoped for is that state power will be

exercised, not upon the basis of any social choice made by the

people of the State, but instead merely . . . at the whim of the

particular state official wielding the power’).

Moreover, apart from enabling Congress to pass the buck on

difficult choices, broad delegations allow agencies to aggrandize

power in an impermissible manner, as demonstrated by EPA’s

own expc /ience.? The checks and balances built into Article I are

* For recent EPA actions that have been held in excess of the agency’s

authority or otherwise illegal, see, e.g., Chemical Mfrs. Ass'n v. EPA, 217

F.3d 861 (D.C. Cir. 2000) (vacating rule providing for “early cessation”

program for combustion of hazardous waste because EPA failed to establish

that program would have environmental or health benefits); American

Petroleum Inst. v. EPA, 216 F.3d 50 (D.C. Cir. 2000) (vacating regulation of

oil-bearing waste waters from crude oil refineries as “solid wastes,” in the

absence of proper justification by EPA); Association of Battery Recylers, Inc.

v. EPA, 208 F.3d 1047 (D.C. Cir. 2000) (reversing EPA’s attempt to regulate

“in-process secondary materials” due to agency's improper interpretation of

12

“key elements of the constitutional scheme to preserve individual

liberty.” John F. Manning, Textualism as a Nondelegation

Doctrine, 97 COLUM. L. REV. 673, 708 (1997); see also INS v.

Chadha, 462 U.S. 919, 951 (1983) (“It emerges clearly that the

prescription for legislative action in [Article I], represents the

Framers’ decision that the lec*s'ative power of the Federal

Government be exercised in acvor. with a single, finely wrought

and exhaustively considered, procedure.”’).

Agencies, however, are able to issue rules with the force of

law without complying with the requirements of bicameralism.

See, e.g., Chadha, 462 U.S. at 986-87 (White, J., dissenting)

(“There is no question but that agency rulemaking is lawmaking

in any functional or realistic sense of the term. . . . [However,]

the agencies receiving delegations of legislative or

quasi-legislative power may issue regulations having the force of

law without bicameral approval and without the President’s

signature.”). As aresult, unbridled delegations improperly leave

important choices to administrative processes not subject to the

lawmaking prerequisites of Article | and not always open to

inputs from affected groups. Agencies are able to follow their

own agendas, and open-ended mandates make meaningful

statutory term and vacating rule providing for test to determine toxicity of

manufactured gas plant waste); Appalachian Power Co. v. EPA, 208 F.3d

1015 (D.C. Cir. 2000) (setting aside EPA’s “periodic monitoring guidance”

tor failure to follow proper rulemaking procedure); Chlorine Chem. Council

v. EPA, 206 F.3d 1286 (D.C. Cir. 2000) (vacating chloroform standard under

Safe Drinking Water Act as arbitrary and capricious and in excess of statutory

authority); Lignite Energy Council v. EPA, No. 98-1525, 1999 U.S. App.

LEXIS 26263 (D.C. Cir. Sept. 21, 1999) (summarily vacating boiler

regulations as “seriously deficient”); American Petroleum Inst. v. EPA, 198

F.3d 275 (D.C. Cir. 1999) (holding that EPA exceeded its statutory authority,

which permitted states to seek prohibition on sale of non-reformulated

gasoline in classified non-attainment areas, by promulgating rule that would

cover areas not so classified); Columbia Falls Aluminum Co. v. EPA, 139

F.3d 914 (D.C. Cir. 1998) (vacating rule establishing treatment standard for

aluminum process by-product because test for determining compliance with

standard was arbitrary and capricious).

13

judicial review impossible. See Jndustrial Union Dep't, 448 U.S.

at 686 (Rehnquist, now C.J., concurring) (“[T]he [nondelegation]}

doctrine ensures that courts charged with reviewing the exercise

of delegated legislative discretion will be able to test that

exercise against ascertainable standards.”). Accordingly, some

have proposed that Congress adopt a statute under which agency

rules would not go into effect without being enacted by

Congress. See Stephen Breyer, The Legislative Veto After

Chadha, 72 Geo. L.J. 785, 793-94 (1984).

Even three decades ago, Judge J. Skelly Wright was moved

to comment, after long experience with administrative law

appeals, that agency discretion in the United States had become

“intolerable.” J. Skelly Wright, Beyond Discretionary Justice,

81 YALE L.J. 575, 576 (1972). He urged a reinvigoration of the

nondelegation doctrine: “There is every reason to believe that,

with a slight nudge from the courts, Congress would eagerly

reassume its rightful role as the author of meaningful organic

charters for administrative agencies.” /d. at 584. “An argument

for letting the experts decide when the people’s representatives

are uncertain or cannot agree is an argument for paternalism and

against democracy.” /d. at 585.

Numerous other commentators and scholars have likewise

urged a robust role for the nondelegation doctrine. See, e.g.,

Providing Reorganization Authority to the President, Hearings

on H.R. 3131, H.R. 3407, and H.R. 3442 Before the Legislation

and Nat’! Security Subcomm. of the House Comm. on

Government Operations, 95th Cong. 76-89, 134-44 (1977)

(statements of Laurence H. Tribe and Philip B. Kurland) (arguing

that a proposed executive branch reorganization authority, which

would have authorized the President to consolidate agencies or

entirely abolish their functions, would be unconstitutional under

the nondelegation doctrine); Kenneth Culp Davis,

ADMINISTRATIVE LAW OF THE EIGHTIES 3:1, at 150 (1989)

(proposing that the nondelegation doctrine be “reconstituted” and

“given new life”); John Hart Ely, DEMOCRACY AND DISTRUST

131 (1980) (“Much of the law is . . . effectively left to be made

14

by the legions of unelected administrators whose duty it becomes

to give operative meaning to the broad delegations the statutes

contain. The point is not that such ‘faceless bureaucrats’

necessarily do a bad job as our effective legislators. It is rather

than they are neither elected nor reelected, and are controlled

oniy spasmodically by officials who are.”).”

3 See also Peter H. Aranson, Ernest Gellhorn & Glen O. Robinson, A Theory

of Legislative Delegation, 68 CORNELL L. REV. 1, 67 (1982) (suggesting

renewed use of nondelegation doctrine because “the idea of a change in

constitutional rules governing legislative delegations has acquired a fresh

dignity” and it “should inspire a serious dialogue if not imminent action”);

Lisa Schultz Bressman, Schechter Poultry at the Millennium: A Delegation

Doctrine for the Administrative State, 109 YALE L.J. 1399, 1402 (2000)

(“American Trucking and [AT&T Corp. v.| lowa Utilities Board, (525 U.S.

366, 388-89, 392 (1999), ] confirm the emergence of anew delegation doctrine

that has the potential to shift the terms of the current debate on delegation and

democracy. The new doctrine . . _ refocus[es] the inquiry on the exercise of

delegated lawmaking authority. ... By requiring agencies to articulate limiting

standards, it ensures that agencies exercise their delegated authority in a

manner that promotes the rule of law, accountability, public responsiveness,

and individual liberty.”); Ernest Gellhorn, Returning to First Principles, 36

AM. U. L. REV. 345, 352-53 (1987) (urging a “limited revival of the

nondelegation doctrine,” under which “{i}nitial consideration should be given

to reading the statutory authority of the agencies and the President more

narrowly if the language permits”); Emest Gellhom & Paul Verkuil,

Controlling Chevron-Based Delegations, 20 CARDOZO L. REV. 989, 989-90

(1999) (“[A] revived delegation doctrine, which requires legislation to include

‘intelligible principles’ for measuring the scope and not just the goals of

legislation, could play a critical role in confining agency discretion and

ensuring agency accountability. . _. Properly pursued, the delegation doctrine

would ensure that major policy decisions are made by an elected Congress and

President, and not an appointive bureaucracy.”); Paul Gewirtz, The Courts,

Congress, and Executive Policy-Making: Notes on Three Doctrines, 40 LAW

& CONTEMP. PROBS. 46, 49-65 (1976) (nondelegation doctrine could be “an

effective deterrent to congressional abdication of responsibility”), Marci A.

Hamilton, Representation and Nondelegation: Back to Basics, 20 CARDOZO

L. REV. 807, 822 (1999) (“The principles underlying the nondelegation

doctrine, which keep congressional, presidential, and bureaucratic power

cabined and are drawn from each structure’s peculiar characteristics, are

valuable weapons in the courts’ separation of powers arsenal. The

—-—

a

— ro

id

——

15

Of particular relevance here, Professor David Schoenbrod has

extensively analyzed the Clean Air Act as a case study

nondelegation doctrine could move the constitutional balance of power back

toward the balance envisioned by the Framers by forcing legislators to make

the law and by rendering it more difficult for the executive branch to enlarge

its sphere of power.”); Theodore J. Lowi, THE ENDOF LIBERALISM 298 (1969)

(“The Court’s rule must once again become one of declaring invalid and

unconstitutional any delegation of power to an administrative agency that is

not accompanied by clear standards of implementation.”); Theodore J. Lowi

Two Roads to Serfdom: Liberalism, Conservatism, and Administrative Power

36 AM. U. L. REV. 295, 303 (1987) (arguing for renewal of nondelegation

doctrine and observing that “ the terms of the delegation from Congress to the

agency are so broad, containing such high-flown rhetoric about the goals, that

any but an expansive interpretation would be contrary to the spirit of the

statute”); Theodore J. Lowi, THE ENDOF LIBERALISM, THE SECOND REPUBLIC

OF THE UNITED STATES 43-63 (1979) (arguing that aspirational statutes like

the Clean Air Act and the Occupational Safety and Health Act dictate an

ambitious result, such as pollution control, without standards of any kind for

accomplishing the stated end, leaving agencies substantial discretion to

achieve the stated result, and shifting the balance of power to make policy

from the legislature to executive branch agencies); Judge Carl McGowan,

Congress, Court, and Control of Delegated Power, 77 COLUM. L. REV. 1119

1127-30 (1977) (nondelegation doctrine “could do much to augment the

quality — and effectiveness as a check against arbitrary or unauthorized

administrative action — of judicial review in the occasional cases in which

Congress ... Chooses ... [to delegate] in order to get a bill enacted”); William

A. Niskanen, Legislative Implications of Reasserting Congressional Authority

Over Regulations, 20 CARDOZO L. REV. 939, 945 (1999) (“The delegation of

legislative authority to executive agencies is clearly unconstitutional and

should offend those who care about the Constitution.”); Bernard Schwartz, Of

Administrators and Philosopher-Kings: The Republic, The Laws, and

Delegations of Power, 72 NW.U.L. REV.443, 457 (1978) (arguing for stricter

standards on delegation, because the “strength of modern government, can

[without them, effectively] become a monster which rules with no practical

limits on its discretion”); Sidney A. Shapiro & Richard E. Levy, Heightened

Scrutiny of the Fourth Branch: Separation of Powers and the Requirement of

Adequate Reasons for Agency Decisions, 1987 DUKE L.J. 387, 403 (broad

delegations “weaken{] the legitimacy of administrative government”); Nadine

Strossen, Delegation as a Threat to Liberty, 20 CARDOZO L. REV. 361, 361

(1999) (“liberty is threatened when the law-making function of government

is delegated to unelected, unaccountable bureaucrats”).

16

illustrating the need for a reinvigorated nondelegation doctrine

and has concluded that “the Clean Air Act delegates lawmaking

authority [to EPA].” David Schoenbrod, Symposium — The

Phoenix Rises Again: the Nondelegation Doctrine from

Constitutional and Policy Perspectives: Delegation and

Democracy, 20 CARDOZO L. REV. 731, 743 (1999). See

generally David Schoenbrod, POWER WITHOUT RESPONSIBILITY:

How CONGRESS ABUSES THE PEOPLE THROUGH DELEGATION

61-67 (1993). Schoenbrod explains that the Clean Air Act

represents a prime example of Congress’ passing difficult policy

choices to an agency: “With delegation, the floor fight is avoided

because almost all legislators can vote for a bill that calls for

clean air and jobs too. That is why the 1970 Clean Air Act

passed almost unanimously. Without delegation, . . .

{l]egislators have to stand up and be held accountable on the hard

choices.” Schoenbrod, 20 CARDOZO L. REV., supra, at 744-45.

Indeed, one of the only contested provisions of the 1970 Clean

Air Act related to what Schoenbrod described as the “one true

law in the statute” — the congressionally enacted provision

requiring new car makers to reduce emissions of three specified

pollutants by ninety percent.‘

The Government contends that the nondelegation doctrine

must be “driven by a practical understanding” of “our

increasingly complex society, replete with ever changing and

more technical problems.” Govt. Br. in No. 99-1257, at 21

(quoting Mistretta, 488 U.S. at 372). That is precisely the point.

As government faces increasingly complex and difficult

questions of public policy, the nondelegation doctrine ensures

that value-laden policy choices are made by politically

accountable legislators rather than faceless bureaucrats.

The need for a vigorous nondelegation doctrine has only been

‘ See Clean Air Act Amendment of 1970 § 202(b\(1), Pub. L. No. 91-604,

84 Stat. 1676 (codified as amended at 42 U.S.C. § 7521(b\1) (1994));

Schoenbrod, 20 CARDOZO L. REV., supra, at 745; Schoenbrod, POWER

WITHOUT RESPONSIBILITY, supra, at 73.

17

heightened by the power accorded to administrative agencies

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

Council, 467 U.S. 837 (1984). Chevron announced a rule of

deference to administrative decisions with respect to agency

interpretations of ambiguous statutes. Judicial deference to

agency constructions of “ambiguous” statutory language presents

risks to the separation of powers and principles of legislative

accountability. An underenforced version of the nondelegation

doctrine, in conjunction with Chevron deference, would greatly

expand the number of statutes containing vague and precatory

language within which agencies could “find” ambiguities in

ordinary language in order to arrogate to themselves the power

to make law. The unfettered power to define as the law of the

land any rationally supportable version of what a statute’s words

might mean is the very essence of the legislative authority

granted to Congress by Article I.

The distinction between the judicial and administrative

functions illustrates the point. Judges interpret the law; they do

not write rules or statutes. Judges “make [law] . . . as though

they were ‘finding’ it — discerning what the law is, rather than

decreeing what it is today changed to, or what it will tomorrow

be.” James B. Beam Distilling Co. v. Georgia, 501 U.S. 529,

549 (1991) (Scalia, J., concurring in the judgment).

Agencies, by contrast, both interpret the law and promulgate

regulations with the force of law. If this administrative power is

supplemented both with Chevron deference and with vague

statutory delegations, agencies will be vested with largely

unchecked authority to issues rules that reflect their own notions

as to what the law should be, without accountability to the

electorate and without the ability of the judiciary to engage in

meaningful review of agency decisions.

Such agency actions amount to exercises of the power

reserved to Congress by Article I. The similarity between agency

and legislative action — and the difference between agency

lawmaking and judicial interpretation — is illustrated by the

principle that agencies, like legislators, cannot bind their

successors. Agencies, like legislatures, “make” rather than

“find” law. Thus, this Court has held that a pre-Chevron judicial

interpretation of a statute is binding on the agency, whereas an

earlier agency selection of a statutory meaning is not binding on

successor agencies. See Lechmere, Inc. v. NLR/}, 502 U.S. 527,

533 (1992); Maislin Indus., Inc. v. Primary Steel, inc., 497 U.S.

116, 131 (1990).

The danger is that agencies will seize the fundamental power

not merely to say, as courts do, what the law is but also the

power to make, as legislatures do, law out of whole cloth.

Unless the nondelegation doctrine is taken with renewed

seriousness, the bestowal of Chevron deference will give

agencies such free rein that the process of agency “construction”

of statutes will become more akin to the legislative process of

literally constructing statutes (critically, without Congress’

political accountability) than to the interpretive and

implementing process in which an agency should rightfully

engage. Agencies will thus exercise the power to make the truly

basic policy decisions and trade-offs that are properly reserved

for Congress under our constitutional system. These decisions

will constitute neither the filling of interstitial gaps nor the

identification of triggering contingencies, but rather the making

of law, plain and simple. The result wiil be to install

administrative agencies as mini-Congresses and mini-judiciaries

at the same time.

Ill. SECTIONS 108 AND 109, AS INTERPRETED

BY EPA, ARE INVALID UNDER THE

NONDELEGATION DOCTRINE.

The Court of Appeals correctly held that EPA’s interpretation

of Sections 108 and 109 violates the nondelegation doctrine. For

these provisions, as construed by EPA, do not merely authorize

the agency to carry out or implement the statutory directives

enacted by Congress, but effectively deputize EPA to engage in

the sort of fundamental policy choices and balancing of complex

19

questions of science, law, and social policy that are the very

essence of lawmaking. In addition, EPA has framed its authority

so broadly as to eliminate the possibility of effective judicial

review as a restraint on its rulemaking.

Two sections of the Clean Air Act govern the establishment,

review, and revision of National Ambient Air Quality Standards

(NAAQS). Section 108 (42 U.S.C. § 7408) directs EPA to

identify certain pollutants which “may reasonably be anticipated

to endanger public health or welfare” and to issue air quality

criteria for them. These air quality criteria are to “accurately

reflect the latest scientific knowledge useful in indicating the

kind and extent of all identifiable effects on public health or

welfare which may be expected from the presence of [a]

pollutant in the ambient air.”

Section 109 (42 U.S.C. § 7409) directs EPA to propose and

promulgate “primary” and “secondary” NAAQS for pollutants

identified under Section 108. Those standards may then be

reviewed and revised as “appropriate.” Section 109(d)(1), 42

U.S.C. § 7409(d)(1). Section 109(b)(1) defines a primary

standard as one “the attainment and maintenance of which in the

judgment of the Administrator, based on [the] criteria and

allowing an adequate margin of safety, are requisite to protect the

public health.” A secondary standard, as defined in section

109(b)(2), should “specify a level of air quality the attainment

and maintenance of which in the judgment of the Administrator,

based on [the] criteria, [are] requisite to protect the public

welfare from any known or anticipated adverse effects associated

with the presence of [the] pollutant in the ambient air.”

The statute instructs EPA to use its “judgment” in

determining what is “an adequate margin of safety . . . to protect

the public health.” Section 109(b)(1), 42 U.S.C. § 7409(b)(1).

As construed by EPA, Sections 108 and 109 prescribe absolutely

no factors or criteria that would constrain the agency. Thus, in

administering Sections 108 and 109, EPA is not applying

statutory factors prescribed by Congress or, in Chief Justice

Marshall’s words, “fill[ing] up the details” under the g<aeral

20

provisions made by Congress. Wayman v. Southard, 23 U.S. (10

Wheat.) 1, 43 (1825). Rather, EPA is making basic policy

choices without any meaningful legislative guidance.

Even EPA’s own defense of its rules reveals the

constitutional flaw and the impossibility of effective judicial

review. According to EPA, “nothing in the statute requires [the

Administrator] to make any specific ‘findings’ or to structure her

decisionmaking in any particular way” before revising a

NAAQS. Final Brief of EPA in American Trucking Assns., Inc.

v. EPA, No. 97-1441, at 43 (D.C. Cir. filed Sept. 14, 1998). The

Administrator need not even find that her regulatory action is -

needed to protect against a “significant risk of harm.” Jd. “Nor

is EPA required to follow any particular paradigm of

decisionmaking.” /d. at 29. Instead, according to EPA, Section

109 gives the Administrator broad authority to revise a NAAQS

to any level that in her judgment reflects a “sufficient” level of

risk reduction. /d. at 10,29. “[T]he final choice of a standard is

a quintessential policy judgment within the discretion of EPA,”

even though “[sJuch decisions present complex questions of

science, law, and social policy.” /d. at 28,29 (internal quotations

omitted). Hence, in issuing the rules under review, “EPA made

policy judgments . . . concerning the point at which risks would

be reduced sufficiently to protect public health with an adequate

margin of safety.” /d. at 10.

EPA believes that ozone, and in all likelihood particulate

matter (PM) as well, are nonthreshold pollutants presenting some

possibility of adverse health impact (however slight) at any

exposure level above zero. See Govt. Br. in No. 99-1257, at 14

(“EPA had reasonably assumed, for purposes of the quantitative

risk assessment, that there is no ‘effects threshold’ for the

categories of health effects measured.”); Ozone Final Rule, 62

Fed. Reg. at 38,863/3 (“Nor does it seem possible, in the

Administrator’s judgment, to identify [an ozone concentration]

level at which it can be concluded with confidence that no

‘adverse’ effects are likely to occur.”); National Ambient Air

Quality Standards for Ozone and Particulate Matter, 61 Fed. Reg.

21

65,637, 65,651/3 (1996) (proposed rule) (“The single most

important factor influencing the uncertainty associated with the

risk estimates is whether or not a threshold concentration exists

below which PM-associated health risks are not likely to

occur.”’).

The only concentration for ozone and PM that is utterly

risk-free, in the sense of direct health impacts, is zero. A

standard of zero is impractical, of course, not only because of the

unthinkable deindustrialization it would require but also because

there are natural background sources of both ozone and PM.

Under EPA’s interpretation, however, the statute contains no

factors at all under which the agency could select a higher

exposure level. There are no determinate criteria for drawing

lines or ior determining how much risk is “too much.” EPA is

left entirely to its own devices in performing the essentially

lawmaking task of selecting an acceptable exposure level. As the

Court of Appeals opined, “EPA’s formulation of its policy

judgment leaves it free to pick any point between zero and a hair

below the concentrations yielding London’s Killer Fog.” 175

F.3d at 1037.

EPA’s interpretation of Sections 108 and 109 thus shares the

same constitutional flaw as the statute invalidated in Panama

Refining. The relevant provision of the National Industrial

Recovery Act of 1933 provided that “[t]he President is

authorized to prohibit the transportation in interstate and foreign

commerce of petroleum and the products thereof produced or

withdrawn from storage in excess of the amount permitted to be

produced or withdrawn from storage by any State law or valid

regulation or order prescribed thereunder . . . .” 293 U.S. at 406.

The purpose of the law was hardly a mystery: to give the

President authority to supplement state enforcement efforts by

banning shipment of “hot oil” in excess of state allocation

decisions. But the statute failed to provide any guidance to the

President as to when this power should be exercised, or any

factors to limit his discretion. “[T]he Congress has declared no

policy, has established no standard, has laid down no rule. There

22

is no requirement, no definition of circumstances and conditions

in which the transportation is to be allowed or prohibited.” 293

U.S. at 430. In the same way, EPA’s construction of Sections

108 and 109 fails to provide the agency with any criteria when it

sets a NAAQS above zero.

The constitutional defect in Sections 108 and 109, as

interpreted by EPA, also resembles the constitutional flaw

identified by Chief Justice Rehnquist in the provision of the OSH

Act at issue in /ndustrial Union Department, AFL-CIO vy.

American Petroleum Institute, 448 U.S. 607 (1980). The statute

instructed that the Secretary of Labor, “in promulgating

standards dealing with toxic materials or harmful physical

agents, . . . shall set the standard which most adequately assures,

to the extent feasible, . . . that no employee will suffer material

impairment of health.” /d. at 612. The OSHA provision, while

extreme, in fact provided greater guidance than Sections 108 and

109, because it directed OSHA to consider feasibility, to

deterimine whether an impairment was “material,” and to protect

the health of each worker. By contrast, the decision of the level

at which an NAAQS should be set is, according to EPA, a

“policy judgment” within EPA’s discretion for which no

statutory guideposts need be followed.

In another instructive case, /nternational Union UAW y.

OSHA, 938 F.2d 1310 (D.C. Cir. 1991), the court of appeals held

that § 3(8) of the OSHA Act, as interpreted by OSHA, was an

unconstitutional delegation of legislative power. Section 3(8)

stated that OSHA-ordered safety precautions must be

“reasonably necessary or appropriate to provide safe or healthful

employment,” which OSHA interpreted as providing that, “once

a significant risk is found, [the agency is empowered] to require

precautions that take the industry to the verge of economic ruin

(so long as the increment reduces a significant risk), or to do

nothing at all.” /d. at 1317. The court of appeals held that, thus

read, the statute would violate the nondelegation doctrine

because it would give OSHA unrestrained power “to roam” at

will between “rigor” and “laxity” when issuing workplace safety

23

rules. /d. The court pointed out that the OSHA regulation

encompassed all American enterprise, and warned that “‘[w]hen

the scope increases to immense proportions (as in Schechter) the

standards must be correspondingly more precise.’” /d. (citation

omitted). The court also noted that giving an agency such

unrestrained latitude “leaves opportunities for dangerous

favoritism” and thus delegates the “power to decide which firms

will live and which will die.” 938 F.2d at 1318.

The same concern applies here — but on an even greater scale.

Implementation of both the ozone and the particulate standards

will cost, according to EPA, close to $47 billion annually — more

than the Nation currently spends for all Clean Air Act programs

combined.* The huge costs that EPA is able to impose in its

discretion underscore the danger of the impermissible delegation

at issue. The NAAQS standards, like the OSHA regulations in

International Union UAW, encompass virtually all American

enterprise. They are national in scope and will have substantial

impacts in virtually every state in the nation. This situation begs

for legislative standards that are “correspondingly more precise,”

938 F.2d at 1317, so that the agency’s tremendous impact on the

country through its rulemaking are constitutionally authorized.

IV. EPA’S DEFENSES OF ITS STATUTORY

CONSTRUCTION ARE FLAWED.

The Government insists that Sections 108 and 109, as

construed by EPA, satisfy the nondelegation doctrine because

“EPA considers, among other public factors, the nature and

severity of health effects, the types of health evidence, the kind

and degree of uncertainties involved, and the size and nature of

* See Innovative Strategies and Economics Group, EPA, Regulatory Impact

Analyses for the Particulate Matter and Ozone National Ambient Air Quality

Standards and Proposed Regional Haze Rule 13-2 (1997); Office of Air and

Radiation, EPA, The Benefits and Costs of the Clean Air Act: 1970 to 1990,

at ES-2 (1997).

24

the sensitive populations at risk.” Govt. Br. in No. 99-1257, at

5.

But this argument cannot possibly salvage EPA’s

interpretation of Sections 108 and 109. The factors cited by the

Government have been voluntarily adopted by EPA; they are not

contained in Sections 108 and 109, either expressly or by any

process of implication that could fairly be attributable to

Congress. See Ozone Final Rule, 62 Fed. Reg. at 38,883/2; EPA,

Review of the National Ambient Air Quality Standards for

Particulate Matter: Policy Assessment of Scientific and

Technical Information: OAQPS Staff Paper, at [1-2 (July 1996).

EPA has simply selected these factors, and has chosen not to

adopt others, as a matter of its own judgment. EPA is entirely

free, under Chevron, to abandon these factors or otherwise to

change its own interpretive views of the statute, so long as it

provides an explanation for its altered position. See Motor

Vehicle Mfrs. Ass'n v. State Farm Mut. Auto. Ins. Co., 463 U.S.

29, 42 (1983). In this very case, the D.C. Circuit on rehearing

noted the risk that EPA might change its mind in a future

rulemaking. See 195 F.3d at 7. Plainly, an agency’s self-imposed

restraints cannot satisfy the requirements of the nondelegation

doctrine that Congress adopt adequate limits on agency action.

In any event, the factors articulated by EPA fail to provide

decisional principles adequate to guide the Administrator’s

discretion. For example, EPA explained that its decision to

select an 0.08 ppm level for the ozone NAAQS rather than a

level of 0.07 ppm rested on its judgment that effects are less

certain and less severe at lower levels of exposure:

The most certain O[3]-related effects, while judged to be

adverse, are transient and reversible (particularly at O[3]

exposures below 0.08 ppm), and the more serious effects

with greater immediate and potential long-term impacts

on health are less certain, both as to the percentage of

individuals exposed to various concentrations who are

25

likely to experience such effects and as to the long-term

medical significance of these effects.

Ozone Final Rule, 62 Fed. Reg. at 38,868/2. But this analysis

is virtually a tautology: higher concentrations of pollutants

inevitably inflict a greater quantum of harm on public health,

with a higher probability, than do lower concentrations.

According to the record before EPA, there was nothing magical

about the level of 0.07 ppm; even “group mean responses in

clinical studies at . . . 0.08 ppm are typically small or mild in

nature.” 61 Fed. Reg. at 65,728. Further, EPA explained that the

transient and reversible nature of health effects (such as those at

0.07 ppm) did not mean they were harmless: “On the other hand,

repeated inflammatory responses associated with exposure to

O[3] over a lifetime have the potential to result in damage to

respiratory tissue such that individuals later in life may

experience a reduced quality of life.” Jd.

In sum, EPA failed to explain why the cutoff point should be

0.08 ppm; why the risks entailed by exposure below that level

were not worth preventing; or why the risks entailed by exposure

above that level were not worth accepting. More importantly,

nothing in Sections 108 and 109 provided a basis for EPA to

make those determinations.

In this regard, the Government’s newfound claim that 0.07

ppm represented “the level at which EPA’s exposure assessment

showed that exposures of public health concern were ‘essentially

zero,’” Govt. Br. in No. 99-1257, at 31-32 (quoting 61 Fed. Reg.

at 65,728, 65,730), is misleading. The cited passage explains not

that health effects would be absent but rather that “[e]stimated

exposures to O[3] concentrations > 0.08 ppm . . . are essentially

zero at the 0.07 ppm standard level for most areas evaluated in

the exposure analyses for the at-risk population of outdoor

children.” In other words, a NAAQS of 0.07 ppm would mean

that outdoor children would not be exposed to ozone

concentrations > 0.08 ppm. However, such a conclusion does

not imply that health effects at a NAAQS of 0.07 ppm would be

26

“Zero.” In its administrative decision, EPA reaffirmed that “it is

likely that ‘O[{3] may elicit a continuum of biological responses

down to background concentrations.’ Thus, in the absence of

any discernible threshold, it is not possible to select a level below

which absolutely no effects are likely to occur. Nor does it seem

possible, in the Administrator’s judgment, to identify a level at

which it can be concluded with confidence that no ‘adverse’

effects are likely to occur.” 61 Fed. Reg. at 65,727. Indeed,

“[nJumerous epidemiological studies have reported excess

hospital admissions and emergency department visits for

respiratory causes (for asthmatic individuals and the general

population) attributed primarily to ambient O[3] exposures,

including O[3] concentrations below the level of the current

standard, with no discernible threshold at or below this level.”

Id. at 65,727-28. “Consequently, . . . ‘the selection of a specific

level . . . is a policy judgment.”” /d. at 65,727.

The Government also suggests that the delegation here is no

more expansive than those upheld by this Court in such cases as

Mistretta v. United States, 488 U.S. 361 (1988), United States v.

Touby, 500 U.S. 160 (1991), and Loving v. United States, 517

U.S. 748 (1996). That suggestion is untenable. In fact, the

delegation in this case is far beyond any upheld by this Court

under the modern nondelegation doctrine. In sustaining the

sentencing guidelines in Mistretta, for example, this Court noted

the extensive constraints imposed by Congress cabining the

Sentencing Commission’s discretion and confining the

Commission to interstitial decisionmaking.®© By contrast,

* “The statute outlines the policies which prompted establishment of the

Commission, explains what the Commission should do and how it should do

it, and sets out specific directives to govern particular situations.” 488 U.S.

at 379 (internal citation omitted). Congress set out three “goals” for the

Commission and further specified four “purposes” of sentencing that the

Commission must pursue in carrying out its mandate. /d at 374. Congress

instructed the Commission that sentencing ranges must be consistent with

pertinent provisions of Title 18 of the United States Code and could not

include sentences in excess of the statutory maximums. Congress also

27

— 108 and 109, as interpreted by EPA, contain no such

imuits.

Similarly, in United States v. Touby, 500 U.S. 160, 165-66

(1991), Congress provided the requisite constraint in a federal

narcotics statute that required the Attorney General, when

exercising her delegated power to invoke a special expedited

procedure for designating a new narcotic as an illegal controlled

substance, to find that doing so was “necessary to avoid an

imminent hazard to the public safety.” /d at 166. This Court

stressed that this “imminent hazard” requirement “meaningfully

constrain[ed]” the government, because in making such a

determination it was “required to consider” a list of statutorily

specified factors that placed “a special emphasis” on the details

of the “current pattern” and “scope, duration and significance” of

required that for sentences of imprisonment, “the maximum of the range

established for such a term shall not exceed the minimum of that range by

more than the greater of 25 percent or 6 months, except that, if the minimum

term of the range is 30 years or more, the maximum may be life

imprisonment.” 28 U.S.C. § 994(b)(2). Moreover, Congress directed the

Commission to use current average sentences “as a starting point” for its

structuring of the sentencing ranges. § 994(m). To guide the Commission in

its formulation of offense categories, Congress directed the consideration of

seven factors: the grade of the offense; the aggravating and mitigating

circumstances of the crime; the nature and degree of the harm caused by the

crime, the community view of the gravity of the offense; the public concern

generated by the crime; the deterrent effect that a particular sentence may have

on others; and the current incidence of the offense. §§ 994(c)(1)-(7).

Congress also set forth eleven factors for the Commission to consider in

establishing categories of defendants, including the offender’s age, education,

vocational skills, mental and emotional condition, physical condition

(including drug dependence), previous employment record, family ties and

responsibilities, community ties, role in the offense, criminal history, and

degree of dependence upon crime for a livelihood. § 994(d)\1)-(11).

Congress also prohibited the Commission from considering the “race, sex,

national origin, creed, and socioeconomic status of offenders,” § 994(d), and

instructed that the guidelines should reflect the “general inappropriateness” of

considering certain other factors, such as current unemployment, that might

serve as proxies for forbidden factors, § 994(e).

28

the “risk” that abuse of the designated drug posed to “the public

health.” Jd. Here, there is no such constraint on EPA.

In Loving v. United States, 517 U.S. 748 (1996), this Court

upheld a delegation to the President to prescribe aggravating

factors for capital punishment in courts-martial, but only because

of the special context of the military and the traditional role of

the President as commander in chief of the armed forces.’

Moreover, this Court warned that “[h]Jad the delegations here

called for the exercise of judgment or discretion that lies beyond

the traditional authority of the President, Loving’s last argument

that Congress failed to provide guiding principles to the

President might have more weight.” /d. at 772. Unlike the

President, EPA has no independent constitutional authority of its

own.

The remaining aspects of the Government’s argument are no

more persuasive. The Government insists that Sections 108 and

10% satisfy the nondelegation doctrine because “[t]he Act

prescribes the legal standard EPA is to apply, factors that EPA is

to consider, a body of experts that EPA is to consult, and

procedures that EPA must follow . . . .” Govt. Br. in No. 99-

1257, at 25. Yet EPA itself has taken the view that, with respect

to the central issue in dispute — the level at which a NAAQS is

” See 517 US. at 772-73 (“The President’s duties as Commander in Chief

_. . require him to take responsible and continuing action to superintend the

military, including the courts-martial. The delegated duty, then, is interlinked

with duties already assigned to the President by express terms of the

Constitution, and the same limitations on delegation do not apply ‘where the

entity exercising the delegated authority itself possesses independent authority

over the subject matter... .” “The military constitutes a specialized

community governed by a separate discipline from that of the civilian,’ and

the President can be entrusted to determine what limitations and conditions on

punishments are best suited to preserve that special discipline.”) (citations

omitted). Even so, this Court identified an important “principle limiting the

President’s discretion to define aggravating factors for capital crimes in

Article 36: namely, the directive that regulations the President prescribes must

‘apply the principles of law ... generally recognized in the trial of criminal

cases in the United States district courts... .” /d at 772.

;

29

to be set — “the final choice of a standard is a quintessential

policy judgment within the discretion of EPA.” Final Brief of

EPA in American Trucking Assns., Inc. v. EPA, No. 97-1441, at

29 (D.C. Cir. filed Sept. 14, 1998). No amount of consultation

with a body of scientific experts or procedural review by the

courts can alter the absence of adequate congressional guidance

with respect to the fundamental policy choice ultimately made by

EPA. Indeed, the open-ended nature of EPA’s interpretation of

Sections 108 and 109, if upheld, would prevent meaningful

judicial review. EPA itself contended in the D.C. Circuit that

there are no determinate standards by which a court may overturn

the exercise of the agency’s judgment.

According to the Government’s logic, Congress could create

a single administrative agency with jurisdiction over all aspects

of the national economy — from consumer safety to energy

policy, environmental protection, and deceptive advertising — and

direct it to adopt “appropriate rules,” so long as the agency were

obliged to consult a body of experts and engage in specified

procedures for public comment and judicial review. Such an

agency would, just like EPA in this case, operate according to a

legal standard and under mechanisms for procedural review. But

the very concept of such an omnipotent bureaucracy is utterly

foreign to Article I and the separation of powers.

In Lopez, this Court recognized limits on Congress’

commerce power in part because of a realization that the

Government’s constitutional theory knew no bounds. See 514

U.S. at 564 (“Under the theories that the Government presents,

... itis difficult to perceive any limitation on federal power .. . .

Thus, if we were to accept the Government’s arguments, we are

hard pressed to posit any activity by an individual that Congress

is without power to regulate.”’).

Precisely the same reasoning is applicable here: if this

delegation passes muster, then anything goes. If EPA’s

interpretation of Sections 108 and 109 were upheld, “it would be

idle to pretend that anything would be left of limitations upon the

power of the Congress to delegate its lawmaking function. . . .

30

Instead of performing its lawmaking function, the Congress

could at will and as to such subjects as it chooses transfer that

function to the President or other officer or to an administrative

body.” Panama Refining Co. v. Ryan, 293 U.S. 388, 430 (1935).

“The question is not of the intrinsic importance of the particular

statute before us, but of the constitutional processes of legislation

which are an essential part of our system of government.” /d.*

CONCLUSION

The judgment of the Court of Appeals invalidating EPA’s

interpretation of Sections 108 and 109 should be affirmed.

Respectfully submitted.

* Even if the statute were construed, as GE urged in its amicus brief in No.

99-1426, to require EPA to “consider” compliance costs and risk trade-offs

in setting a NAAQS, serious nondelegation questions would remain. For

Congress has provided no guidance to EPA with respect to a host of scientific

and policy issues, apart from consideration of costs, in judging the

significance of risks. Further, EPA — which has strenuously resisted any claim

that it is obliged to consider costs — has never identified any statutory limits

to agency discretion in selecting among various potential means of

considering and weighing costs, alternatives that differ so fundamentally as to

reflect different ends altogether. The Court of Appeals’ judgment vacating the

agency action under review must accordingly be affirmed even if this Court

holds that Sections 108 and 109 of the Clean Air Act require EPA to take

costs and risk trade-offs into account.

oe

31

BENJAMIN W. HEINEMAN, JR.

BRACKETT B. DENNISTON III

STEPHEN D. RAMSEY

MATTHEW O. TANZER

GENERAL ELECTRIC COMPANY

3135 Easton Turnpike

Fairfield, CT 06431

(203) 373-2453

LAURENCE H. TRIBE

Counsel of Record

JONATHAN S. MASSEY

THOMAS C. GOLDSTEIN

420 Hauser Hall

1575 Massachusetts Ave.

Cambridge, MA 02138

(617) 495-4621

Counsei for Amicus Curiae

September | 1, 2000