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

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URL: https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385014_0353%3A30

## Record

- **Collection:** Supreme Court brief
- **Document type:** Amicus Curiae Brief
- **Published:** January 1, 2001
- **Citation:** 531 U.S. 457

## Text

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
. | UNITED STATES COURT OF APPEALS ee
| ie R THE DISTRICT OF COLUMBIA ~~ a

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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

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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 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

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Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385014_0353%3A30. Public record. Not legal advice.