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

Supreme Court of th HntihF Biates |

CAROL M. BROWNER,

Administrator of the Environmental Protection Agency, ef al.,

Petitioners,

AMERICAN TRUCKING ASSOCIATIONS, INC., ef al.,

Respondents.

On Writ of Certiorari

to the United States Court of Appeals

for the District of Columbia Circuit

BRIEF OF AMICI CURIAE

ASSOCIATION OF AMERICAN PHYSICIANS & SURGEONS

AND CENTER FOR INDIVIDUAL FREEDOM >

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TABLE OF CONTENTS

Pages

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ee ee Fr i erenicicierrnnttnrnctmsscerepumnsensncciiiniizaian il

INTEREST OF ADREIUE CURIAE.....ccccccscccccsccccccccssscsccccsesocsees l

I GOO FURIES creccnsesencotensciccnntintenntinsasieisaiins 2

TE sncinentemniierenentinaieanidciiciniidininnpeuaindionnebdedta 3

I. CONGRESS MAY NOT DELEGATE POLITICAL

CHOICES BETWEEN COMPETING AND IRREDUCIBLE

AID, <ccsscinicsisscsitettiteniuiianinrisadeasniininnaninaiianiidenaanninninien 3

A. The Nature of Legislative Action. ................:::0000++ 5

B. The Requirements of Adequate Legislative

Guidance to Executive Agent. .............ccccsseeeseeeeees 9

Il. SECTION 7409 VIOLATES THE NONDELEGATION

DOCTRINE BY NOT GUIDING THE VALUE CHOICES

I Tir rev scecseeniccenenentneesncivmasitsetabaiasiinniniiinn 15

A. The Unguided Value Choice Delegated to

SITE cincisscnnenpataivapiasincseinnianniapelininininienigiedaséibiniasaniebiile 15

B. Mere Consideration of Costs and Benefits

Offers No Intelligible Principle. .....................00 25

C. Invalidation Is The Appropriate Remedy For

EE TTI. ccccntcencsstecsnscnsnsinrineisnninninns 27

ee erncnnsssccnsetessnsnsesersnsensanasneneescesmnntinginnemunties 28

TABLE OF AUTHORITIES

Pages

Cases

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

KR .. a 3, 11

Alden v. Maine, 527 U.S. 706 (1999) ooo cceeeccccccccccceee eee. 4

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

ET TTITE eeriicitiicignanbedininbiieiniiatebatitiabiindneuningsoteiiaateae a: 10, 11

American Trucking Ass ‘ns, Inc. v. EPA, 175 F.3d

a!) oF gy passim

American Trucking Ass ‘ns, Inc. v. EPA, 195 F 3d

Bg Fg SE ee 6, 21, 28

City of Boerne v. Flores, 521 U.S. 507 (1997). 4

Environmental Defense Fund v. EPA, 598 F.2d

EEE ER oi a 25

Field v. Clark, 143 U.S. 649 (1892) ........ccccecccees 3,6, 11, 15

Industrial Union Dep't, AFL-CIO v. American

Petroleum Inst., 448 U.S. 607 (1980)

ggg SERENE Sa 5, 6, 28

INS v. Chadha, 462 U.S. 919 (1983) .......ccccekeccccccecececeeeeeeseees 13

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

8 ES ee 3

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

(CADC), cert. denied, 449 U.S. 1042 (1980)......... seesedd, 24

Loving v. United States, 517 U.S. 748 (1996) 0000000... passim

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

il

Opp Cotton Mills, Inc. v. Administrator, Wage

and Hour Div. of Dept. of Labor, 312 U.S. 126

TL Hn il

Pegram v. Herdrich, -- U.S. --, 120. Ct. 2143

ciel naesiaeiaartipaiatriasd eaiieatianindabainatittnebenmmennentinmemnnnenente 27

Seminole Tribe of Florida v. Florida, 517 U.S. 44

IT ite neaentecniatiasiaeiittetininnnionninatensniemanitionmnmmnetl 4

Touby v. United States, 500 U.S. 160 (1991) .......cccccccceeeeeees 14

United States v. Lopez, 514 U.S. 549 (1995).........ccccceee 4,7,8

United States v. Morrison, -- U.S. --, 120 §. Ct.

SITs nti igndnaniaidaniatninerieemnenmmmieneensantinl 4

Yakus v. United States, 321 U.S. 414 (1944)........... 6,9, 15, 21

Statutes

ly 19, 26

ee passim

ST dl, re 18, 19

Regulations

G3 Fad. Ram, FO AS6 (IGT 7) qncccccccccccssccccssessessscssesccsseseseses 16, 23

GB Fed, Ram, SRGES (BGG 7) ancesccsccescscesccssesccpsessccccvssscsosescossecs 22

Constitutional Provisions

TR 8 Oe | 3

Other Authorities

123 Cong. Rec. $9423 (daily ed. June 10, 1977)... 24

123 Cong. Rec. $9426 (daily ed. June 10, 1977)..........c0e000 24

H.R. Rep. No. 95-294, 95" Cong., 1" Sess. (1977) .........e000+: 24

IN THE

Supreme Court of the United States

CAROL M. BROWNER,

Administrator of the Environmental Protection Agency, et al.,

Petitioners,

AMERICAN TRUCKING ASSOCIATIONS, INC., ef ai.,

Respondents.

On Writ of Certiorari

to the United States Court of Appeals

for the District of Columbia Circuit

INTEREST OF AMICI CURIAE'

The Association of American Physicians & Surgeons

(“AAPS”) is a nonprofit organization dedicated to defending

the practice of private medicine. Founded in 1943, AAPS

publishes a newsletter and journal and participates in litiga-

tion in furtherance of its goals of limited government and free

markets. Central to the interests of AAPS are the enforce-

ment of constitutional limits on the exercise of government

power in general and on the administrative state in particular.

' This brief is filed with the written consent of all parties. No counsel for

a party authored this brief in whole or in part, nor did any person or entity,

other than amici, their members, or their counsel make a monetary contri-

bution to the preparation or submission of this brief.

2

Sweeping delegations of authority in the areas of health and

medicine are extremely prone to abuse and difficult to police.

AAPS has extensive experience challenging the regulatory

edicts of an unresponsive federal health bureaucracy and

knows first-hand the nature of administrative abuse that

comes from lack of adequate legislative direction and control.

AAPS thus views a revitalized nondelegation doctrine as es-

sential to a limited government respectful of free markets and

free citizens.

The Center for Individual Freedom (“CIF”) is a nonprofit

organization with the mission to investigate, explore, and

communicate in all areas of individual freedom and individual

rights. It believes that the greatness of our Constitution lies

not only in its protection of individual freedom through spe-

cific individual rights forbidding certain uses of power, but

also in its structural protection of freedom through the many

constraints it places on any exercise of power. CIF thinks the

nondelegation doctrine should be applied with vigor and

courage. Rather than fear any resulting inefficiency from

demanding that Congress itself exert more guidance on the

rules governing society, we should applaud such inefficiency

as a bulwark preserving individual freedom.

SUMMARY OF ARGUMENT

This brief will address the first question presented by Pe-

titioners: Whether 42 U.S.C. § 7409, the Clean Air Act pro-

vision directing EPA to set and revise national ambient air

quality standards (“NAAQS”), is an unconstitutional delega-

tion of legislative power. It is the duty of Congress to make

the value choices that are inherent in legislative decision

making. While Congress may delegate the execution of those

choices to various agents, it may not delegate the value

choices themselves. In this case Congress has done precisely

that which is forbidden. Although Congress has provided a

variety of relevant considerations to be consulted in setting

NAAQS, it has not provided any guidance as to how those

3

considerations are to be weighed against each other. Regard-

less whether § 7409 limits EPA to consideration of only direct

health effects from pollutants or also allows consideration of

the human and economic costs of pollution control, that pro-

vision constitutes an unlawful delegation insofar as it permits

EPA to set nonzero NAAQS for nonthreshold pollutants but

provides no intelligible principle directing EPA where to set

such NAAQS.

ARGUMENT

I. CONGRESS MAY NOT DELEGATE POLITICAL CHOICES

BETWEEN COMPETING AND IRREDUCIBLE VALUES.

The Constitution commands that “All legislative powers

herein granted shall be vested in a Congress of the United

States.” U.S. Const. art. 1, § 1. Derived from this fundamen-

tal command, the basic statement of the nondelegation doc-

trine has been established for over a century:

[W]e long have insisted that “the integrity and mainte-

nance of the system of government ordained by the Con-

stitution” mandate that Congress generally cannot dele-

gate its legislative power to another Branch.

Mistretta vy. United States, 488 U.S. 361, 371-72 (1989)

(quoting Field v. Clark, 143 U.S. 649, 692 (1892)). While

recognizing that Congress may seek “assistance from another

branch,” the nondelegation doctrine requires Congress to “lay

down by legislative act an intelligible principle to which [its

agent] is directed to conform.” J.W. Hampton, Jr. & Co. v.

United States, 276 U.S. 394, 406, 409 (1928).

This Court has been unfailing in confirming the existence

of the nondelegation doctrine and its requirement that Con-

gress provide an intelligible principle to guide the actions of

its agents. See, e.g., A.L.A. Schechter Poultry Corp. v. United

States, 295 U.S. 495, 529-30 (1935) (“Congress is not per-

mitted to abdicate or to transfer to others the essential legisla-

4

tive functions,” which consist of “laying down policies” and

“establish[ing] the standards of legal obligation”); Loving v.

United States, 517 U.S. 748, 758, 771 (1996) (“fundamental |

precept of the delegation doctrine is that the lawmaking func-

tion belongs to Congress ... and may not be conveyed to an-

other branch or entity”; “intelligible-principle rule seeks to

enforce the understanding that Congress may not delegate the

power to make laws”).

Yet while this fundamental constitutional doctrine is oft-

stated, it is rarely enforced. As this Court noted in Loving v.

United States, “{t}hough in 1935 we struck down two delega-

tions for lack of an intelligible principle, we have since up-

held, without exception, delegations under standards phrased

in sweeping terms.” 517 U.S. at 771 (citations omitted). Un-

fortunately, the history of the nondeicgation doctrine can

seem a history filled with excuses for net applying it.

Amici respectfully suggest that if the Constitution indeed

contains a nondelegation doctrine — and we believe it does —

then this Court is obliged to give identifiable content to that

doctrine. Declaring a constitutional principle that in practice

is never enforced only reduces respect for the Constitution

and encourages disregard of all constitutional boundaries.

Such disregard had become apparent concerning Congress’s

enumerated power under the Commerce Clause, and this

Court is just recently beginning to re-establish coherent con-

stitutional limits on that power. See United States v. Morri-

son, -- U.S. --, 120 S. Ct. 1740 (2000); United States v. Lopez,

514 U.S. 549 (1995). The Constitution’s careful allocation

of powers and its constraints on the means of their exercise

are likewise deserving of renewed attention as they play a vi-

? In other areas as well, this Court has rediscovered the constitutional lim-

its on government action. See Seminole Tribe of Florida v. Florida, 5\7

U.S. 44 (1996) (Eleventh Amendment immunity); Alden v. Maine, 527

U.S. 706 (1999) (state sovereign immunity); City of Boerne v. Flores, 521

U.S. 507 (1997) (limits on power under § 5 of the Fourteenth Amendment).

5

tal role in ensuring the limited government envisioned by the

Founders and in constraining the too-easy exercise of author-

ity at the expense of liberty.

Several members of this Court have already shown some

reluctance to continue merely reciting and then ignoring the

nondelegation doctrine. Thus, in a delegation case involving

crimes by members of the military, Justice Thomas relied

only upon the President’s unique authority as Commander in

Chief and significantly took “no position with respect to Con-

gress’ power to delegate authority or otherwise alter the tra-

ditional separation of powers outside the military context.”

Loving, 517 U.S. at 778 (Thomas, J., concurring in the judg-

ment). And in a case involving regulation of health and

safety in the workplace, then-Justice Rehnquist went further,

writing that “[i]f we are ever to reshoulder the burden of en-

suring that Congress itself make the critical policy decisions,

these are surely the cases in which to do it.” /ndustrial Union

Dep't, AFL-CIO v. American Petroleum Inst., 448 U.S. 607,

687 (1980) (“Benzene”) (Rehnquist, J., concurring in the

judgment). Such questioning of this Court’s reticence is well-

taken, especially because “ensuring” that Congress make

those decisions assigned to it by the Constitution, though per-

haps a “burden,” is also a duty assigned to this Court by that

same Constitution.

This case presents an opportunity for all members of the

Court to revisit whether its nondelegation jurisprudence has

drifted too far from first principles and hence distorted the

constitutional scheme. It is time to return to those first prin-

ciples and give content to the neglected but vital constitu-

tional requirement that only Congress may make the laws.

A. The Nature of Legislative Action.

In order to give content to the nondelegation doctrine, it is

first necessary to define that which may not be delegated —

the legislative power. “The essentials of the legislative func-

tion are the determination of the legislative policy and its

6

formulation and promulgation as a defined and binding rule

of conduct.” Yakus v. United States, 321 U.S. 414, 424

(1944). Then-Justice Rehnquist in the Benzene case aptly

characterized “the very essence of legislative authority under

our system” as the making of “the hard choices, and not the

filling in of the blanks.” 448 U.S. at 687 (Rehnquist, J., con-

curring in the judgment); see also Field v. Clark, 143 U.S. at

693 (legislative power is concerned with the “expediency or

the just operation” of particular commands, whereas the exe-

cution of the law turns on ascertaining “the existence of a

particular fact” upon which a legislative command may be

contingent); American Trucking Ass'ns, Inc. v. EPA, \95 F.3d

4, 15 (CADC 1999) (“ATA II’) (Silberman, J., dissenting

from denial of rehearing en banc) (“[The purpose of the non-

delegation doctrine] is, of course, to ensure that Congress

makes the crucial policy choices that are carried into law.

The ability to make those policy choices (even if only at a

broad level of generality) is what is meant by legislative

power.”).° The hard and crucial policy choices required to be

made by Congress typically have one thing in common: they

each involve a clash of competing values and interests that

cannot be reconciled by merely mechanical methods, but

must be decided by unvarnished political considerations.

This conception of legislative power fits within the

broader separation-of-powers principle integral to the struc-

ture and function of our constitutional democracy. As Justice

Kennedy, writing for the Court, observed:

By allocating specific powers and responsibilities to a

branch fitted to the task, the Framers created a National

> Cf. Mistretta v. United States, 488 U.S. 361, 419-20 (1989) (Scalia, J.,

dissenting) (“As John Locke put it almost 300 years ago, ‘[t]he power of

the legislative ... being only [the power] 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.’ J. Locke, Second Treatise of

Government 87 (R. Cox ed.1982) (emphasis added).”)

7

Government that is both effective and accountable. Ar-

ticle I’s precise rules ... make Congress the branch most

capable of responsive and deliberative lawmaking.

The clear assignment of power to a branch, furthermore,

allows the citizen to know who may be called to answer

for making, or not making, those delicate and necessary

decisions essential to governance.

Loving, 517 U.S. at 757-58. Furthermore, what Justice Ken-

nedy previously has said concerning the roles of the States

and the federal government under Our Federalism is readily

and appropriately transposed to the requirement of nondele-

gation between branches of the federal government:

The theory that two [branches] accord more liberty

than one requires for its realization two distinct and dis-

cernable lines of political accountability .... [Citizens

must have some means of knowing which of the two

[branches] to hold accountable for the failure to perform

a given function. ‘[Separation of powers] serves to as-

sign political responsibility, not to obscure it.” ... Were

the [Executive] to take over the regulation of entire areas

of traditional [congressional] concern, ... the boundaries

between the spheres of [legislative and executive]

authority would blur and political responsibility would

become illusory. ... The resultant inability to hold ei-

ther branch of the government answerable to the citizens

is more dangerous even than devolving too much

authority to [a single branch].

Lopez, 514 U.S. at 576-77 (alteration added, citations omit-

ted). Like federalism, the nondelegation doctrine ensures

proper accountability for difficult and perhaps divisive

choices by demanding that Congress make those choices and

make them in a way that is transparent to the agents who must

execute them, to the courts that must review them, and to the

citizens who must finally judge them.

8

Despite agreement about the existence and importance of

the delegation doctrine, the difficulty over the years has been

in applying the doctrine. That difficulty was summed up by

Justice Scalia, who offered that once it is conceded that

“some judgments involving policy considerations” must be

left open by Congress, “the debate over unconstitutional dele-

gation becomes a debate not over a point of principle but over

a question of degree.” Mistretta, 488 U.S. at 415-16 (Scalia,

J. dissenting). As with questions of federalism, once non-

delegation questions are defined as merely ones “of degree,”

it becomes tempting for courts to leave nondelegation con-

cerns to the political process and to entrust the political

branches with abiding their own duty to preserve the consti-

tutional balance. But “the absence of structural mechanisms

to require those officials to undertake this principled task, and

the momentary political convenience often attendant upon

their failure to do so, argue against a complete renunciation of

the judicial role.” Lopez, 514 U.S. at 578 (Kennedy, J., con-

curring). Like federalism, the nondelegation doctrine “is too

essential a part of our constitutional structure and plays too

vital a role in securing freedom for us to admit inability to

intervene when one or the other level of Government has

tipped the scales too far.” /d. And indeed, even Justice

Scalia recognizes that “[a]t some point the responsibilities

assigned [by Congress to the Executive] can become so ex-

tensive and so unconstrained that Congress has in effect dele-

gated its legislative power.” Loving, 517 U.S. at 777 (Scalia,

J., concurring in part and concurring in the judgment). The

task, therefore, is to generate a workable formulation for

finding where that point might be.

Amici believe that such formulation must start with a

more stringent version of the intelligible-principle require-

ment that focuses on the necessarily political choices required

in balancing competing and irreconcilable values. While no

formulation can eliminate questions of degree at the margins,

focusing on congressional value choices can certainly expand

9

the role of constitutional principle and help “prevent Congress

from forsaking its duties.” Loving, 517 U.S. at 758.

B. The Requirements of Adequate Legislative

Guidance to Executive Agents.

An endlessly generous conception of the requirement for

“intelligible” principles in legislation renders unenforceable

the principle that in almost all instances “the basic policy de-

cisions governing society are to be made by” Congress. Mis-

tretta, 488 U.S. at 415 (Scalia, J., dissenting). “What legis-

lated standard, one must wonder, can possibly be too vague to

survive judicial scrutiny, when we have repeatedly upheld, in

various contexts, a ‘public interest’ standard?” /d. at 416. If

the nondelegation doctrine is to have meaning, therefore, the

requirement of an intelligible principle must itself be given

intelligible content.

Amici propose that for any legislative guidance regarding

further prospective rulemaking to qualify as an intelligible

principle it must, in addition to the current requirements for

channeling the scope of rulemaking authority, identify those

policy values that provide both the bases of and the limits on

such rulemaking and articulate a reviewable means for re-

solving conflicts between and calibrating the balance among

competing values. It is only through this added element that

executive agents can know Congress’s legislative will and

that courts will be able to distinguish between the execution

of congressional policy and the administrative exercise of ab-

dicated legislative authority.

Substantive Guidance Sufficient for Accountability. An

essential means of determining whether legislation provides

an adequately intelligible principle for guiding subsequent

behavior is to ask if “it would be impossible in a proper pro-

ceeding to ascertain whether the will of Congress has been

obeyed.” Yakus, 321 U.S. at 426. For it is only when the

“legislative policies and standards [are] clear” that “judicial

review of the remedies adopted by the [agency can] safe-

10

guard[] against statutory or constitutional excesses.” Ameri-

can Power & Light Co. v. SEC, 329 U.S. 90, 106 (1946). In

many cases, however, courts have lacked such clear guidance

and thus often concluded that an agency’s policy choices

were unreviewable exercises of administrative discretion.

Requiring Congress to identify the values both advancing

and restraining administrative action, and to address conflicts

and balancing among those values, both comports with the

essence of law making and lessens a central tension of ad-

ministrative law: the need to judge administrative determina-

tions but the inability to substitute judicial opinions for ad-

ministrative discretion on matters of policy. When Congress

then chooses to enlist agencies to execute its will, the required

policy-making hierarchy will give direction to those agencies

on how to make subsidiary policy decisions and will provide

a legislative standard by which courts can judge those policy

decisions. Executive agents thus can be made accountable

not just for the process by which they make decisions, but for

the substance of those decisions as well.

In addition, requiring that the fundamental value balance

be part of the legislation itself (rather than hidden in the ad-

ministrative process) ensures the political accountability for

Congress that is a central purpose of the nondelegation doc-

trine. It will no longer be sufficient to articulate and take

credit for only the popular half of legislative policy — such

falsely singular purposes as to protect health, to feed the hun-

gry, and to serve the public interest. Instead, Congress also

will have to identify and take responsibility for the competing

policies that necessarily limit such self-serving declarations of

purpose. Legislation necessarily involves hard choices

among competing values and interests, and forcing those

choices into the law, rather than allowing them to be buried in

the administrative process, ultimately “allows the citizen to

know who may be called to answer for making, or not mak-

ing, those delicate and necessary decisions essential to gov-

ernance.” Loving, 517 U.S. at 758.

11

Complex Facts Do Not Excuse Hard Value Choices. A

reluctance to enforce the nondelegation doctrine has some-

times been attributed to the notion that in “an increasingly

complex society Congress obviously could not perform its

functions” without assistance from the other branches. Opp

Cotton Mills, Inc. vy. Administrator, Wage and Hour Div. of

Dept. of Labor, 312 U.S. 126, 145 (1941). Even assuming

such congressional inability were true, it nonetheless begs the

question of what type of help is required or permitted. In

Amici’s view, Congress may obtain help in analyzing com-

plex facts, in identifying difficult policy choices and compet-

ing social values, and in studying the consequences of various

legislative responses. What Congress must do for itself, how-

ever, is make the final determinations of which policies to

pursue, which values will take precedence, and how far any

given trade-off will go.

Although past cases are hardly uniform on the point, the

concern over Congress’s ability to handle complexity and

detail has often — and more appropriately — been addressed to

the facts and circumstances to which legislation will apply,

not to the basic task of establishing relevant value hierarchies

and resolving value conflicts. Thus, in Schechter Poultry, this

Court recognized “the necessity of adapting legislation to

complex conditions involving a host of details with which the

national legislature cannot deal directly.” 295 U.S. at

529-530. In Opp Cotton Mills, this Court was concerned that

Congress not be “obliged to find all the facts subsidiary to” its

legislative policy decisions. 312 U.S. at 145. And in Ameri-

can Power & Light, “the necessities of modern legislation

dealing with complex economic and social problems” were

said to make it inefficient to require Congress “to appraise

before-hand the myriad situations to which it wishes a par-

ticular policy to be applied and to formulate specific rules for

each situation.” 329 U.S. at 105; see also Field v. Clark, 143

U.S. at 694 (legislature “can make a law to delegate a power

to determine some fact or state of things upon which the law

12

makes ... its own action depend”) (citation and quotation

marks omitted). Thus, whatever “necessities” may arise from

the complexities of modern problems, it should be sufficient

for Congress to receive assistance regarding the facts and cir-

cumstances of those problems, without the need for others to

also make the policy choices that will be overlaid upon those

varying facts and circumstances.‘

Any fear that requiring Congress to make even its own

value choices “would divert that branch from more pressing

issues, and defeat the Framers’ design of a workable National

Government,” Loving, 517 U.S. at 758, is unwarranted.

While there certainly are many issues vying for the attention

of Congress, one might wonder whether Congress’s already

prodigious grasp now exceeds the scope of its constitutionally

proper reach, thus creating the supposed scarcity in its avail-

able attention. As Congress’s grasp is once again confined to

matter genuinely involving interstate commerce, for example,

it may find more time to “divert” to attending its constitu-

tional duties when formulating legislation. Furthermore, in-

sofar as Congress’s limited capacity to make complex and

difficult decisions limits the number of issues it can address

or the number of laws it can pass, such limits are entirely con-

sistent with the constitutional scheme. It may be less efficient

to constrain Congress’s capacity so, but such inefficiency is

* And if it were still deemed too burdensome for Congress to make the

requisite value decisions at the outset, it could presumably seek further

assistance by requesting of its agents proposed legislation resolving the

value questions, which Congress would then approve, modify, or reject.

While easing Congress’s initial legislative load, such an approach would

still preserve the constitutionally required checks on the adoption of a new

law and would keep with Congress the affirmative responsibility for the

value choices in such a new law. The D.C. Circuit below seemed to rec-

ognize this alternate course when it observed that “if EPA concludes that

there is no principle available, it can so report to the Congress, along with

such rationales as it has for the levels it chose, and seek legislation ratify-

ing its choice.” American Trucking Ass'ns, Inc. v. EPA, 175 F.3d 1027,

1040 (CADC 1999) (“ATA I’).

13

precisely the type of structural check that the Framers used to

limit the exercise of national power. This type of limit also

forces Congress to prioritize its legislative goals in light of its

limited institutional resources, thus ensuring that such laws as

it does pass are those most appropriate for national, rather

than state or local, attention. Finally, even if it were today

thought desirable to supplement congressional capacity to ad-

dress multiple and complicated issues, “there are many desir-

able dispositions that do not accord with the constitutional

structure we live under. And in the long run the improvisa-

tion of a constitutional structure on the basis of currently per-

ceived utility will be disastrous.” Mistretta, 488 U.S. at 427

(Scalia, J., dissenting).

Post-Hoc Legislative Review Is Insufficient. The occa-

sional suggestion that Congress’s post hoc oversight of its

agents is sufficient to overcome nondelegation problems,

American Trucking Ass'ns, Inc. v. EPA, 175 F.3d 1027, 1061

(CADC 1999) (“ATA I’) (Tatel, J., dissenting), inverts the

constitutional limits on the legislative power. C/. INS v.

Chadha, 462 U.S. 919, 954-955 (1983) (Congress may not

enact laws without bicameral passage and presentment of the

bill to the President). Before imposing obligations on the

citizenry, Congress must overcome inertia and objection and

a possible veto by the President. To require instead only that

Congress act as a post hoc reviewer of the legislative acts of

its agents would transform those safeguards against too-facile

exercise of authority into a protection for the unguided exer-

cise of authority by administrative agents.

Impact on Precedent. A more stringent version of the

intelligibile-principle requirement might well have changed

the results of some past cases, and certainly would have re-

quired further analysis in many others. But it seems quite

possible that many past results would have been the same

even under such further analysis.

For example, Mistretta involved the special context of

sentencing, in which the statute did “no more than fetter the

14

discretion of sentencing judges to do what they have done for

generations — impose sentences within the broad limits estab-

lished by Congress.” 488 U.S. at 396. In addition to such

context, this Court also held that Congress “in actuality ...

legislated a full hierarchy of punishment ... and stipulated the

most important offense and offender characteristics to place

defendants within these categories.” /d. at 377. Congress

also had set statutory ranges of punishment for all crimes,

further limited the deviation between minimum and maxi-

mum sentences under the eventual sentencing guidelines, and

identified current average sentences as a benchmark. /d. at

375. And while the statute in Touby v. United States con-

tained the seemingly broad authority to regulate new drugs

that pose an “imminent hazard to public safety,” it also con-

tained quite detailed guidance as to what might constitute

such a hazard. 500 U.S. 160, 165-166 (1991) (discussing

multi-layered elements of the imminent-hazard determina-

tion). The statute further required separate findings that a tar-

geted drug “‘has a high potential for abuse,’ that it ‘has no

currently accepted medical use in treatment in the United

States,’ and that ‘[t}here is a lack of accepted safety for use of

the drug ... under medical supervision.’” /d. at 167.

Several decisions also have distinguishing elements re-

lating to the special nature of the power at issue or the special

authority of the agent. Thus, in the military-justice case of

Loving v. United States, the delegated duty was “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 mat-

ter.” 517 U.S. at 772 (citation omitted). In Field v. Clark,

not only was the subject matter that of foreign relations and

trade, but the alleged delegation involved a mere finding by

the President of “the existence of a particular fact” and

“{njothing involving the expediency or the just operation of

such legislation was left to the determination of the presi-

15

dent.” 143 U.S. at 693. And in Yakus, the exigencies of war

may have caused this Court to be more lenient than otherwise,

and even then there was at least some arguable guidance, with

price-stabilization benchmarks starting at “the prices prevail-

ing between October | and October 15, 1941,” and later re-

vised “on the basis of the levels which existed on September

15, 1942.” 321 U.S. at 421, 423.

The point of these examples is not to pre-determine any

other specific cases, but rather to show that while a reinvigor-

ated nondelegation doctrine may well conflict with (and

hence overrule) much loose language and a number of results

from prior cases, it need not require repudiation of a// results

reached under more lenient past applications of that doctrine.

Il. SECTION 7409 VIOLATES THE NONDELEGATION

DOCTRINE By Not GUIDING THE VALUE CHOICES

FACED BY EPA.

Applying the above principles to § 7409, Congress has

passed off to EPA numerous unguided value choices inherent

in setting NAAQS and consequently has violated the non-

delegation doctrine. What § 7409 does is merely tout one half

of the values at stake — health, safety, and welfare — without

offering any intelligible principle on how much is enough.

Whether viewed strictly in EPA’s direct-health terms or more

sensibly viewed to include the full range of monetary and

human costs and benefits associated with pollution control,

EPA’s task under § 7409 requires the agency to make the type

of fundamental value choices that Congress may not delegate.

A. The Unguided Value Choice Delegated to EPA.

The initial requirements for setting and revising NAAQS

are that they must be set at levels “requisite to protect the

public health” and must provide an “adequate margin of

safety.” § 7409(b)(1). If understood as imposing a legislative

requirement of zero-harm and zero-risk, this language might

provide fairly discrete, though absurd and potentially uncon-

16

stitutional, guidance for EPA. Thus, if one were to accept

EPA’s speculative and occasionally irrational linear no-

threshold hypothesis regarding harm from certain pollutants,

these requirements would seem to require NAAQS levels set

at zero concentration.”

Nobody interprets § 7409 in this way, however, and

therein lies the problem. Thus, while EPA views its task as

being to “reduce risks sufficiently to protect public health

with an adequate margin of safety,” it “recogniz[es] that [PM]

standards will not be risk-free.” 62 Fed. Reg. at 38,656

(1997). But if it is accepted that EPA can set NAAQS that

allow some harm to health and welfare, then the statute pro-

vides no principle — intelligible or otherwise — as to how

much harm is permissible or required. “For EPA to pick any

non-zero level it must explain the degree of imperfection

permitted. The factors that EPA has elected to examine for

this purpose in themselves pose no inherent non-delegation

problem. But what EPA lacks is any determinate criterion for

drawing lines. It has failed to state intelligibly how much is

too much.” ATA J, 175 F.3d at 1034. In fact, § 7409 fails ex-

plicitly even to identify competing values that might justify

accepting some risk of harm from pollutants, much less to

prioritize or to calibrate such values against the otherwise

blindly monolithic policy of protecting health and welfare

against the risks of pollutants. EPA’s supposed recognition

that “its mandate is not to set standards more stringent than

requisite to protect against health effects of public health sig-

nificance,” Pet. Br. 33, offers no intelligible guidance because

it merely adds a second fully indeterminate standard atop the

* The linear no-threshold hypothesis that EPA often applies is, in many

cases, demonstrably false. Vitamins and such EPA-regulated pollutants as

trace minerals and radiation are unhealthful or lethal in high doses, but are

essential to life in small doses. Yet EPA hypothesizes low-dose harm by

extrapolating from high doses and then ignores all other consequences of

its action. This approach uses tiny doses of “pollutants,” which can be

measured, as a surrogate for health, which cannot be measured directly.

17

first. Given EPA’s mandate to prevent unknown harms, it is

difficult to imagine any health effect that could not be used to

justify EPA regulation.

Without intelligible principles with which to determine

how much protection is enough, EPA’s decisions take on airs

of the absurd. The typical external constraints on such fa-

cially unlimited goals as health and safety are unavailable,

hence any nonzero stopping point for NAAQS becomes either

arbitrary or disingenuous. For example, the decision to per-

mit ozone levels that cause only temporary and reversible

harm to human health makes no sense in EPA’s direct-health-

only paradigm. Why wouldn't EPA prevent such harms.

Surely even temporary pain and suffering have some negative

value in any honest calculus of public health. In the real

world, such harms might be tolerated because eliminating

them would be infeasible, overly expensive, or would have

other collateral consequences deemed to outweigh the poten-

tial benefits. But in EPA’s surreal direct-health-only world,

NAAQS must be assumed to be entirely without costs or

other indirect consequences. Given such an assumption, any

decision to ignore even limited harms thus is either arbitrary

or is made without disclosing the actual values driving EPA’s

choices.°

° For nonthreshold pollutants, the only check on setting all NAAQS at

zero is the possibility that a pollutant has some positive direct health effect

which may outweigh its negative effects at some optimum concentration.

Such countervailing direct health effects would, effectively, turn the pol-

lutant into a net threshold pollutant, at which point EPA would be required

to set the NAAQS at some indeterminate point below the threshold. EPA

opposed even this minimal internal check on its health-related value

choices, arguing that it was not obliged to look at beneficial health effects

from pollutants. ATA /, 175 F.3d at 1051. This is bitterly ironic given that

the beneficial effects of various trace pollutants might actually be easier to

demonstrate than the speculative harm from low doses, and EPA’s over-

exuberance might well be costing lives rather than saving them.

18

Claims of Complexity Only Mask Value Choices. \n de-

fense of EPA’s unguided policy discretion, Petitioners claim

that the agency must make “highly technical judgments about

the health and welfare effects of particular pollutants.” Pet.

Br. 25. That claim ultimately misses the point. The technical

judgments are just the first steps to the NAAQS - identifying

various effects that may or may not justify regulation.

Whether such effects are determined once, or periodically re-

visited “based on the ‘latest scientific knowledge,’” Pet. Br.

28, does not change the fundamental nondelegation problem.

For it is not the fact-finding steps, but rather the unguided fi-

nal step — deciding whether it is worth it or desirable to regu-

late the effects so found — that violates the nondelegation

doctrine. The final step is not a “technical” judgment, it is a

value judgment that happens to have technical information as

one of its considerations.

Likewise, the claim that further congressional guidance is

not possible given the complex technical nature of the field is

incorrect. Nothing precludes Congress from giving policy

guidance that can be applied in light of such technical or vari-

able inputs. In other sections of the CAA, for example, Con-

gress directed EPA to require the best available technology or

to target a standard based upon achievements of the best cur-

rent practices in emission control. See 42 U.S.C. § 7412(d)(3)

(basing “maximum degree of reduction in emissions” on “the

emission control that is achieved in practice by the best con-

trolled similar source”); id. § 7412(g)(2)(A) (referring to

“maximum achievable control technology emission limita-

tion”). Those standards offer discrete guidance while still al-

lowing for evolving scientific knowledge. ’

’ Standards with discrete or determinabi -xternal referents do not guide

subsequent policy discretion, but instead represent Congress making the

relevant value choice itself by providing the balance and then directing the

agency to fill in the blanks. Other discrete standards of this type could be

expressed in terms of percentage reductions in mortality or maximum re-

duction in pollution up to a specified cost, thus making the value trade-

19

By pretending that the NAAQS revision is merely a sci-

entific decision, rather than recognizing it as policy and value

decision based upon scientific information, EPA ultimately

masks the value choices being made behind a veneer of sup-

posedly objective science. Hiding the ball in that manner,

combined with the often impenetrable morass of the adminis-

trative rulemaking process, affirmatively undermines non-

delegation values by reducing accountability for EPA’s unac-

knowledged value choices."

Scientific Guidance Does Not Provide Policy Guidance.

Somewhat in tension with the claimed need for broad discre-

tion in the face of scientific complexity, Petitioners also claim

that Congress has provided sufficient substantive guidance

with the requirement that NAAQS must be based on the air

quality criteria under § 7408, which in turn must reflect “the

latest scientific knowledge” and other variable information.

Pet. Br. 31. Petitioners also claim to find adequate limits in

EPA’s requirement to consider and explain any deviations

from the advice of the Clean Air Scientific Advisory Com-

mittee (“CASAC”) regarding air quality criteria and stan-

dards. Pet. Br. 23; see also ATA I, 175 F.3d at 1059 (Tatel, J.,

dissenting) (because CASAC brings “scientific methods to

their evaluation of the Agency’s Criteria Document and Staff

Paper, CASAC provides an objective justification for the

pollution standards the Agency selects”).

Neither the air quality criteria nor the latest scientific in-

formation imposes any substantive limit on the final NAAQS

offs but still accommodating changing knowledge. See, e.g., 42 U.S.C.

§ 7412(c)(9)(B)(i) (delisting of certain source categories based upon the

absence of “a lifetime risk of cancer greater than one in one million to the

individual in the population who is most exposed to emissions of such

pollutants from the source”).

* EPA’s failure accurately to define and to acknowledge critical choices in

the decision-making process also conflicts with the basics of the scientific

method, which relies upon open and honest peer review and criticism to

hone hypotheses regarding any given question.

20

that EPA may impose. They are merely factors in the mix,

and absent overwhelming evidence that a pollutant could

never cause harm, EPA claims it is free to impose NAAQS

based on even unknown and speculative risks. See Pet. Br.

28. It is hard to imagine any pollutant for which EPA could

not assert a basis for regulation or any NAAQS level it could

not justify under these supposed limits.

For example, Petitioners’ claim that existing NAAQS lev-

els for ozone and PM were effectively an upper boundary be-

cause there were a “wide range of adverse health effects” be-

low those levels, Pet. Br. 31, could just as easily have been

inverted into a claim that such effects were insufficiently

certain or did not rise to the level of a “public” health prob-

lem. The mere existence of some health effects is insufficient

to require EPA to set a level lower than the prior NAAQS.

And while EPA points to arbitrary lower boundaries of its

own selection, Pet. Br. 31-32, those boundaries were not dic-

tated by the statute. That EPA today came up with one result

in response to various criteria does not deny that it could have

come up with any other results merely by expressing a differ-

ent “policy” choice. Section 7409 simply provides no limit

on such choices by EPA.

CASAC’s involvement likewise provides no intelligible

principle directing EPA’s policy discretion. EPA is free to

disagree with CASAC’s recommendations, and is guided only

in the manner of its expressing, not in the values underlying,

any potential disagreement. While CASAC may arguably

provide some measure against which to test EPA’s factual

determinations, CASAC’s policy recommendations hardly

offer an “objective justification” for the eventual NAAQS.

The policy preferences of scientists are no more objective

than the policy preferences of EPA or of Congress. That is

the nature of policymaking — it consists of choices made

among competing values, not among objective facts. While

CASAC may provide EPA with scientific information re-

garding elements of the policy choice to be made, the final

21

choice of NAAQS is no more scientific than any other policy

decision.”

Procedural Checks Do Not Make Up for Substantive

Limits. As for Petitioners’ reliance on the various procedural

checks of rulemaking and judicial review, Pet. Br. 23-24, the

former does not address the substantive delegation problem

and the latter is only as good as the supposedly intelligible

principle set down in the first place. Procedural requirements

placed on rulemaking merely seek to enhance the input, thor-

oughness, and instrumental rationality of agency action, but

do not change the nature of the choice delegated. Such re-

quirements may be valuable and arguably important in

avoiding a due process problem, but if Congress neglects to

make or guide the essential value choices, it has unconstitu-

tionally delegated its fundamental power and duty. Instruct-

ing an executive agent to “think hard and be careful” may be

sensible, but it adds nothing of substance.

For similar reasons, judicial review under the current stat-

ute does not mitigate the nondelegation problem because that

review can offer no more substantive guidance or check than

the statute itself. In the absence of standards from Congress,

judicial review of the substance of EPA’s choices would be

either improper or impossible.

Thus, Judge Silberman’s suggestion below to focus upon

whether EPA’s “final product was unreasonable” regardless

of “whether the agency ‘actually adhered to a disciplined de-

cisionmaking process,’” ATA //, 195 F.3d at 15 (Silberman,

J., dissenting) (citation omitted), simply invites courts to sub-

* Even if CASAC’s policy choices did have some controlling weight, that

would merely constitute a further delegation to private actors with even

greater problems. See Yakus, 321 U.S. at 424 (observing that one problem

with the statute in Schechter Poultry was that the “function of formulating

the codes [of fair competition] was delegated, not to a public official re-

sponsible to Congress or the Executive, but to private individuals engaged

in the industries to be regulated”).

22

stitute their unguided policy views for EPA’s. Even had

Congress extended such an invitation to review for substan-

tive “reasonableness,” that would not be an intelligible prin-

ciple, but rather a further and improper delegation to the

courts.

If the requirement of a reasoned explanation is instead

treated as a requirement of some modicum of internal consis-

tency and some evidence of actual thought, it then collapses

back to a procedural check and nothing more. Any choice

among conflicting and irreconcilable values is possible as

long as it is explained in sufficient detail. EPA’s seemingly

open-ended charge to protect the public health from unknown

threats based on non-causal relationships thus defies review

and defies guidance. Indeed, even EPA’s methodologies ap-

parently need not be consistently applied. Petitioners essen-

tially admit the ad hoc nature of every decision EPA makes,

arguing that because the inputs into the NAAQS process are

so variable,

“the most appropriate approach to establishing a

NAAQS with an adequate margin of safety may be dif-

ferent for each standard under review. Thus, no gener-

alized paradigm ... can substitute for the Administra-

tor’s careful and reasoned assessment of all relevant

health factors in reaching such a judgment.”

Pet. Br. 29 (quoting 62 Fed. Reg. at 38,688). It is difficult to

imagine how that ad hoc process can be subject to arbitrary

and capricious review — it is arbitrary by definition — and it is

impossible to imagine how a court could ever question EPA’s

substantive judgments under this construction of § 7409.

Legislative History Undermines a Claim to Guidance.

Petitioners’ reliance on legislative history as providing some

Si. posed guidance is surprising given that they cite very little

of that history. Citing briefly to the D.C. Circuit’s discussion

of legislative history in Lead Industries Association v. EPA,

Petitioners claim that they are limited to regulating based

23

upon only “adverse” health effects, which must be “medically

significant, not merely detectable.” Pet. Br. 24 (citing 647

F.2d 1130, 1152, 1155 (CADC), cert. denied, 449 U.S. 1042

(1980)). Of course, Petitioners promptly contradict them-

selves on this point, claiming that § 7409’s requirement of an

“adequate margin of safety” means NAAQS should be “pre-

ventative or precautionary,” Pet. Br. 24, which in turn frees

EPA from the need for “rigorous step-by-step proof of cause

and effect,” Pet. Br. 28 (citation and internal quotation marks

omitted). Indeed, Petitioners claim EPA is free to target

“hazards which research has not yet identified.” Pet. Br. 28

(citation omitted).'°

This very case demonstrates the lack of EPA’s claimed

constraint, given the agency’s willingness and ability to

regulate supposed hazards of questionable medical pedigree.

Thus, regarding PM, EPA admits that “the relevant toxico-

logical and controlled human studies published to date have

not identified any accepted mechanism(s) that would explain

how such relatively low concentrations of ambient PM might

cause the health effects reported in the epidemiological lit-

erature” and admits its lack of knowledge “whether or not a

threshold concentration exists below which PM-associated

health risks are not likely to occur.” 62 Fed. Reg. at 38,656.

In the face of such speculation, legislative history referring to

“adverse” effects seems to offer no guidance at all.

The most to be gleaned from the legislative history is that

Congress failed to confront the difficult choice it faced, and

ultimately sent a mixed message. Thus, the House Report on

the 1977 Amendments recognizes a no-risk plain reading of

'° One might also note that when EPA proclaims a danger from low doses

of a pollutant based upon extrapolation from evidence at much higher

doses, the harm is not only of doubtful significance, it is not even “detect-

able” at all. Yet armed with a linear no-threshold hypothesis and a charge

to be preventive and precautionary, EPA imposes untold costs based on

what amounts to sveculation and guesswork.

24

the NAAQS provision, but then seems to reject such a re-

quirement, stating: “Obviously, this no-risk philosophy ig-

nores all economic and social consequences and is impracti-

cal. This is particularly true in light of the legal requirement

for mandatory attainment of the national primary standards

within 3 years.” H.R. Rep. No. 95-294, 95" Cong., 1‘ Sess.

127 (1977) (queted in Lead Industries, 647 F.2d at 1151 n.

41). Similarly, Senator Muskie expressed his view that “there

is no such thing as a threshold for health effects” and conse-

quently, “[e]ven at the national primary standard level, which

is the health standard, there are health effects that are not

protected against.” 123 Cong. Rec. $9423 (daily ed. June 10,

1977) (quoted in Lead Industries, 647 F.2d at 1151 n. 41).

Senator Muskie ultimately recognized how this view was at

odds with the statutory language:

I wish it were possible for the Administrator to set na-

tional primary and secondary standards that fully im-

plement the statutory language .... The fact is, as testi-

mony and documents disclose, the standards do not fully

protect in accordance with the statutory language which

gives the Administrator authority to provide for addi-

tional protection. He has had to make a pragmatic

judgment in the face of the fact that he found there is no

threshold on health effects, which makes it very difficult

then to apply absolute health protection, and he has not

been able to do that.

123 Cong. Rec. $9426 (daily ed. June 10, 1977) (quoted in

Lead Industries, 647 F.2d at 1153 n. 43).

Having recognized and accepted the impossibility of con-

forming to the statutory language, Congress nonetheless

failed to offer any guidance or to amend the statute to include

an alternate standard. Rather than provide constitutionally

adequate guidance, the legislative history demonstrates that in

the context of nonthreshold pollutants § 7409 constitutes

empty posturing with which EPA could not and did not com-

ply. Indeed, the D.C. Circuit tong ago recognized that the

25

charge “to protect against unknown dangers” is a “veritable

paradox calling as it does for knowledge of that which is un-

known” and the statutory “term ‘margin of safety’ is Con-

gress’s directive that means be found to carry out the task and

to reconcile the paradox.” Environmental Defense Fund v.

EPA, 598 F.2d 62, 81 (CADC 1978). But it was not until

twenty years later that the D.C. Circuit recognized, in the de-

cision below, that the only way to move past a paradox of this

sort is through a naked political choice. Such paradoxical

choices are among the most difficult in law making, but they

necessarily belong to Congress and may not be delegated.

B. Mere Consideration of Costs and Benefits Offers

No Intelligible Principle.

As noted above, supra at 17-19, Amici believe that the di-

rect-health-only interpretation of § 7409 not only lacks an in-

telligible principle to guide EPA’s value choices, it also in-

vites either absurd or inevitably disingenuous results. A zero-

risk, zero-concentration NAAQS, by effectively demanding

the impossible, is facially absurd and, if required, would

likely render § 7409 unconstitutional under the Fifth Amend-

ment on both Due Process and Takings grounds. Alterna-

tively, regardless whether EPA admits it, any nonzero stop-

ping point for nonthreshold pollutants will inevitably be based

on a balance of competing interests.

Given the alternatives of absurdity or dishonesty, it makes

far more sense to adopt an available construction of the stat-

ute that allows the direct and open consideration of competing

interests. EPA’s current refusal, sanctioned by the D.C. Cir-

cuit, openly to take into account any effects other than direct

health consequences from pollution is misguided and deeply

troubling. Aside from ignoring or masking difficult cost and

feasibility constraints that necessarily form part of any ra-

tional governmental process, EPA’s blinders also ignore or

mask competing jealth considerations. Thus, if an exces-

sively stringent NAAQS diverts resources from more valu-

26

able efforts — even other pollution control efforts — EPA

claims not to consider that when setting a particular standard.

Rather than promoting health, therefore, EPA’s approach

could actually lead to a NAAQS that caused a net Joss of life.

Such a nonsensical construction of the statute ought to be

avoided if at all possible. In that respect, Amici agree with

Cross-Petitioners in No. 99-1426 that a more sensible con-

struction of § 7409 is indeed available that would allow EPA

to consider a variety of relevant interests. '!

But Amici do not believe that the sensible inclusion of

these additional considerations eliminates the nondelegation

problem. If anything it potentially makes that problem worse.

Expanding the range of values factoring into EPA’s final de-

cision, without guiding the balancing of those values, simply

renders EPA’s decision that much more “legislative” in na-

ture. Without a hierarchy among the competing values, and

some means of calibrating and comparing costs and benefits,

the statute so construed would still lack an intelligible princi-

ple to guide EPA’s substantive decisions concerning when

costs exceeded benefits. As the many notable economists fa-

voring cost-benefit analysis themselves recognize, “there may

be factors other than economic benefits and costs that agen-

cies will want to weigh in decisions, such as equity across

generations,” cost-benefit analysis “does not emphasize fac-

tors that are not easily quantified or monetized,” and therefore

it will be necessary in any such analysis to “give due consid-

eration to factors that defy quantification but are thought to be

important.” Brief Amici Curiae of AEI-Brookings Joint

Center for Regulatory Studies, ef. a/., in No. 99-1426, at 10

(July 21,,2000). What this description illustrates is a perfectly

sensible means of making legislative decisions, not an intelli-

'' Amici find room for additional considerations in § 7409's use of the

words “requisite” and “adequate,” in that section’s incorporation of the

criteria under § 7408, which cover more than just health, and in the re-

quirement to consider CASAC recommendations and public comments,

which need not be limited to or based solely upon health concerns.

27

gible principle for an agency without legislative authority to

“monetize” or otherwise give “due consideration” to com-

peting values lacking a common denominator.

Thus, even were EPA to develop “the rough equivalent of

a generic unit of harm that takes into account population af-

fected, severity and probability,” as hypothesized by the D.C.

Circuit, ATA /, 175 F.3d at 1039, the statute offers no guid-

ance as to how much harm is acceptable or how much ex-

pense Congress is willing to impose for each unit reduction in

harm. While identifying, categorizing, and comparing the

harm from air pollution all constitute sound scientific endeav-

ors that may properly be delegated to agents, the final deci-

sion of what to do about such harm remains a political, not a

scientific, judgment.

In other contexts, this Court has recognized that “a judg-

ment about the appropriate level of expenditure for health

care in light of the associated malpractice risk” is a judgment

for Congress, not the Courts. Pegram v. Herdrich, -- U.S. --,

--, 120 S. Ct. 2143, 2150 (2000). Likewise, the judgment

concerning the appropriate level of cost to impose in light of

the associated pollution risks is for Congress and not for an

administrative agency. That “debatable social judgment,”

similar to the “judgments of social value” involved in deter-

mining “optimum treatment levels and health care expendi-

ture,” id. at --, 120 S. Ct. at 2150, is the type of fundamental

policy judgment that lies at the heart of the legislative power.

C. Invalidation Is The Appropriate Remedy For

Improper Delegation.

Although the D.C. Circuit was correct in holding that no

intelligible principle guided EPA’s discretion in setting

NAAQS, the proper remedy is to declare the law unconstitu-

tional and leave it to Congress, not to the agency, to provide

the fundamental guidance lacking in the current statute.

While a remand might have served certain admuinistrative-law

and due-process functions, it does not serve the “key function

28

of non-delegation doctrine, to ‘ensure[] to the extent consis-

tent with orderly governmental administration that important

choices of social policy are made by Congress.”” ATA /, 175

F.3d at 1038 (quoting Benzene, 448 U.S. at 685 (Rehnquist,

J., concurring in the judgment).

As Judge Silberman correctly observed, it is “only this

so-called ‘third’ purpose ... that has any connection to the

doctrine's constitutional source.” ATA //, 195 F.3d at 15 n. 2

(Silberman, J , cissenting from denial of rehearing en banc).

Although Judge Silberman mistakenly concluded that there

was no improper delegation, his separate critique of the rem-

edy was on the mark:

_[The purpose of the nondelegation doctrine] is, of

course, to ensure that Congress makes the crucial policy

choices that are carried into law. ... It hardly serves —

indeed, it contravenes — that purpose to demand that

EPA in effect draft a different, narrower version of the

Clean Air Act.[] Under that view Congress would be

able to delegate almost limitless policymaking authority

to an agency, so long as the agency provides and con-

sistently applies an “intelligible principle.”[]

Id. at 15 (footnotes omitted). The nondelegation doctrine re-

quires that Congress actually make the hard choices and pro-

vide the substantive guidance for subsequent agency action.

Delegating the task of providing guidance to the agency itself

does not satisfy nondelegation requirements. If there is to be

a remand in this case, it must be a remand to Congress to pro-

vide the guidance currently lacking.

CONCLUSION

For the foregoing reasons, the decision of United States

Court of Appeals for the D.C. Circuit should be affirmed with

instructions to invalidate the PM and ozone NAAQS.

Dated: September 11, 2000.

29

Respectfully Submitted,

ERIK S. JAFFE

Counsel of record

ERIK S. JAFFE, P.C.

5101 34” Street, N.W.

Washington, D.C. 20008

(202) 237-8165

Counsel for Amici Curiae