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

Y | Supreme Court, U.S.

(22 FILED

No. 99-1257 SEP f 1 9000

In The CLERK

Supreme Court of the United States

«

CAROL M. BROWNER, ADMINISTRATOR OF

ENVIRONMENTAL PROTECTION AGENCY, et al.,

Petitioners,

versus

AMERICAN TRUCKING ASSOCIATIONS, INC., et al.,

Respondents.

¢

On Writ Of Certiorari

To The United States Court Of Appeals

For The District Of Columbia Circuit

¢

BRIEF OF THE MANUFACTURERS ALLIANCE/MAPI

INC., THE ALUMINUM ASSOCIATION, AND THE

STEEL MANUFACTURERS ASSOCIATION AS

AMICI CURIAE IN SUPPORT OF RESPONDENTS

¢

*Davip SCHOENBROD

New York Law School

57 Worth Street

New York, New York

10013

(212) 431-2339

DesorAH PAULus

250 Joralemon Street

Brooklyn, New York 11201

(718)

Marci A. Hamitton

40 Washington Square —

South

New York, New York

~ 10012

(212) 992-8824

QUESTION PRESENTED

Whether the court of appeals correctly rejected the

Environmental Protection Agency’s standardless inter-

pretation of Section 109 of the Clean Air Act, 42 U.S.C.

§ 7409 (1994).

TABLE OF CONTENTS

Page

CRISS UIOS CUNO ETEA 0 ccc cdcvccesccceseteuccens i

pe Bs PTT eee iii

PERMISSION TO FILE BRIEF AS AMICI CURIAE.. 1

INTERESTS OF AMICI CURIAE.............0.0005. 1

SUMMARY OF ARGUMENT................000000: 3

PEED 6668 060s cde oe rdeescenesssenctbotcounen 5

I. CONGRESSIONAL DELEGATION AND THE

oF et Nye Bee ay | Per rerrrerrrrire 5

A. The Delegation Doctrine Has a Long Ped-

igree as a Fundamental and Enforceable Part

Oe GD GI oo ko cbc devevessdeceseces 6

B. The Supreme Court’s Delegation Jurispru-

dence Needs Reinforcement to Serve the

Goals of the Delegation Doctrine .......... 9

II. THIS COURT SHOULD REJECT EPA’S INTER-

PRETATION OF SECTION 109 OF THE CLEAN

= PPE rE r errr er Ty errr rvererrrer rrr Tye 12

A. The EPA’s Interpretation Fails to Provide An

Intelligible Principle to Bound Its Authority.. 13

B. EPA Erred in Overlooking the Clear Meaning

of the Clean Air Act, Which Is Consonant

with this Court’s Delegation Doctrine...... 15

C. EPA’s Strategic Maneuvers................. 20

EE A uvecdnncdensdnedpconcocecccsesceene 28

TABLE OF AUTHORITIES

Page

Cases

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

Es cca secenevesseccseccees 1, 5, 9, 10, 15

Amalgamated Meat Cutters and Butcher Workmen v.

Connolly, 337 F. Supp. 737 (D.D.C. 1971).......... 14

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

ERENT TTT Serr rere rere TTT TTT TTT ye 26

Amoco Oil v. EPA, 501 F.2d 722 (D.C. Cir. 1974) ..... 23

Arizona v. California, 373 U.S. 546 (1963)............. 14

Automotive Parts & Accessories Ass'n, Inc. v. Boyd,

Se Ee Se Ces GE BE ccc ccccccccccccccecs 24

ATST Corp. v. lowa Public Utilities Bd., 525 U.S. 366

REESE oreo rt, TTT Tee TTT TTT TTT TTT Teer 11

Cargo of the Brig Aurora v. United States, 11 U.S. 382

iat dedeheheeebebeencececsesccessccccccscess 6

Carter v. Carter Coal Co., 298 U.S. 238 (1936).......... 4

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

Council, Inc., 467 U.S. 837 (1984).................. 28

Citizens to Preserve Overton Park, Inc. v. Volpe, 401

i is cise ShbSbetoceceubeccesesesocesece 14

City of Boerne v. Flores, 521 U.S. 507 (1997).......... 12

Clinton v. City of New York, 524 U.S. 417 (1998).. 2, 11, 15

Ethyl Corp. v. EPA, 541 F2d 1 (D.C. Cir. 1976).. 22, 23, 24

Ethyl Corp. v. EPA, 5 Envtl. Law Rep. 20096 (D.C.

= BS & BPPPTTTITITITTT TTT TTT Tee 23

Hampton v. Mow Sun Wong, 426 U.S. 88 (1976) ...... 10

iv

TABLE OF AUTHORITIES - Continued

Page

Industrial Union Dept. v. American Petroleum Insti-

Ee FS fer rT eT 4, 6, 11, 27

INS v. Chadha, 462 U.S. 919 (1983) .................. 10

Jordan v. De George, 341 U.S. 223, reh’g denied, 341

Ses Se GE necedatedacudeneueecsnceseceeedae 10

].W. Hampton v. United States, 276 U.S. 394 (1928)

boudecasenadesekensdecsdesddseaadodsnameanal 5, 8, 9, 10

D GG, Ee kD Ge oer scodeccccccceces 6

Kimel v. Florida Bd. of Regents, 528 U.S. 62 (2000) .... 12

Knickerbocker Ice Co. v. Stewart, 253 U.S. 149 (1920) ..... 8

Lead Industries Assoc. v. EPA, 647 F.2d 1130 (D.C. Cir.

1979), cert. denied, 449 U.S. 1042 (1980)........ 2, 22, 24

Loving v. United States, 517 U.S. 748 (1996)......... 2, 6

Ludecke v. Watkins, 335 U.S. 160 (1948) ............... 6

Mistretta v. United States, 488 U.S. 361 (1989)...... 5, 11

National Cable Television Ass'n v. United States, 415

Sa. Ge GED c cePOC Rta ncncceccccveeceqsenaesee 11

National Labor Relations Board v. Jones & Laughlin

ee OO eee 10

Natural Resources Defense Council v. EPA, D.C. Cir.

No. 72-2233 (Order, Oct. 28, 1973) ................ 21

Natural Resources Defense Council v. Train, 545 F.2d

fF Lo | error ser ere 21, 22

Panama Refining Co. v. Ryan, 293 U.S. 388 (1935) .. 5, 9, 10

Railroad Retirement Board v. Alton Railroad Co., 295

ee Gey SE 0 6.0.0005 csecueneedbhssdnuasaneeeenet “

Vv

TABLE OF AUTHORITIES — Continued

Page

Raines v. Byrd, 521 U.S. 811 (1997) ...............04.. 2

Smith v. Goguen, 415 U.S. 566 (1974) ................ 10

Stoutenburgh v. Hennick, 129 U.S. 141 (1889) .......... 6

Touby v. United States, 500 U.S. 160 (1991)............ 5

Train v. Natural Resources Defense Council, 421 U.S.

By 00 06 0n 4 nen candencasedesesessinecissecsdas 15

United States v. Darby, 312 U.S. 100 (1941)............ 4

United States v. L. Cohen Grocery Co., 255 U.S. 81

SEP s Shc cececcenseduseesnnsddencesenenceeaeedtens 7

United States v. Lopez, 514 U.S. 549 (1995)........... 12

United States v. Morrison, 120 S. Ct. 1740 (2000) ..... 12

United States v. Rock Royal Co-op, 307 U.S. 533

SOUS conccecucenciseecesdncecscenevestaccsunsess 11

Washington v. W.C. Dawson & Co., 264 U.S. 219

SED bv ondenecddeevesceesésctessstutséceccsetceuens 7

Wickard v. Filburn, 317 U.S. 11) (1942)................ y

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

U.S. CoNsTITUTION

ee GE, GOB. Gy BH Becccccncccccnccdssccéaccesies 4,5

CLEAN AiR AcT

GB URE. B Fee GO cccccccccccsccccvcsesees 19

GB BG. BFP GOED ccccccdcccessccucccsccesccaces 4

42 U.S.C. § 7409(b)(1) (1994) ................. 13, 16, 19

vi

TABLE OF AUTHORITIES - Continued

Page

Ce ae Oe ee GE cv be ccnccvocesevosscvccsncees 20

Ge ee Fe PD GSD hccccedescccccsecesoccccveses 20

GE UBL... BE Fase Taee (OGG oc cc ccccccccccccccees 2, 25

42 U.S.C. §§ 7521(i)(2)(A), (i)(3)(B)(i) (1994) ......... 25

42 U.S.C. § 7545(c)(1)(A) (1994) .... 2... cee eee ee eee 22

ee es Oe PD GED 6 Cececececuscccsncncescies 19

Lecis-ative History

SD TU BE Ge GG Oe vv vcctcesccvevesesssceces 20

FF Dg Tere 21

62 Fed. Reg. 38,688, 38,383 (1997).............000000. 5

Pub. L. 91-604, § 4(a), 84 Stat. 1680 (1970) .......... 19

BES Cate, GRRE. Gee GGG ED cc ccvcccccccccsccccesess 24

SP Cee, TRS. TESS CRG ED cc cccccccccesccccseseccs 16

Clean Air Act Amendments of 1977: Hearings Before

the Senate Subcom. On Environmental Pollution of

the Senate Comm. On Environmental and Public

Health, 95th Cong., Ist Sess., pt. 3 at 8 (1977)..... 14

Reorganization Plan No. 3 of 1970, § 2(a)(3)-(4), 3

C.F.R. 1072 (1970), reprinted in 84 Stat. 2086

Dl siiiichuddeinn pasudndadeenkeeenaaeee ues 16

1 Legislative History of the Clean Air Act Amend-

ments of 1970 at 232 (Senate Debates on § 4358,

Bete Ey CPE cb ccevcccccvevevcceecensveseseseses 27

EPA Office of Air Quality Criteria Development,

Airborne Lead (Draft, Jan. 7, 1971)................. 21

vii

TABLE OF AUTHORITIES - Continued

Page

Books

Henry J. Abraham, Justices and Presidents (1974) ...... 9

Gregg Easterbrook, A Moment on the Earth (1995) ...20, 25

John Hart Ely, Democracy and Distrust: A Theory of

TG CE ve cdc ddducudwendioeneenenanebe 9

Frank P. Grad, Public Health Law Manual: A Hand-

book on the Legal Aspects of Public Health Adminis-

tration and Enforcement (1965) ...............4.. 17, 20

Sir A. Bradford Hill, Principles of Medical Statistics

Sen Gs HOES Sek decdeéssncencecesudsdeseséudianene 18

Sir A. Bradford Hill, Principles of Medical Statistics

SD Ge BOGE oe ba cbvccscccccsenesedenivccesessus 18

John R. Quarles, Cleaning Up America: An Insider's

View of the Environmental Protection Agency

GERD oc cevccseesccvesdecuccocescenessevasesasaces 21

David Schoenbrod, Power Without Responsibility:

How Congress Abuses the People Through Delega-

Se GG cacdnndenadeteconsunneashesasénessees 7, 28

Alex de Tocqueville, Democracy in America (Phi-

BD BURGE Cle WEEE c cc ccccvcccccsscccvcccscsess 7

Laurence H. Tribe, American Constitutional Law (2d

Gy FR ov ce cdescvccesscccessoncscsvesccsesenesss 11

ARTICLES

Lisa S. Bressman, Essay: Schechter Poultry at the

Millenium: A Delegation Doctrine for the

Adminstrative State, 109 Yale L.J. 1399 (2000) ...... 11

Viii

TABLE OF AUTHORITIES - Continued

Page

Marci A. Hamilton, Discussions and Decisions: A

Proposal to Replace the Myth of Self-Rule with an

Attorneyship Model of Representation, 69 N.Y.U. L.

GI Ge hv hehavdvevisdsedeckesccdéseadéses 28

Marci A. Hamilton, Representation and Nondelega-

tion: Back to Basics, 20 Cardozo L. Rev. 807

SRUSED Fb ONE sbCdevscesdvcecesecesnseessocceecocecess 7

John F. Manning, Textualism As A Nondelegation

Doctrine, 97 Colum. L. Rev. 673 (1997) ............ 11

Edmund Muskie and Elliot Cutler, A National

Environmental Policy: Now You See It, Now You

Don’t, 25 Maine L. Rev. 163 (1973)................ 27

Arnold W. Reitze, The Legislative History of U.S. Air

Pollution Control, 36 Houston L. Rev. 679 (1999) ..16, 17

Cass R. Sunstein, Delegation Canons, 67 U. Chi. L.

Bh DE CE so RS ae nKtnccescisccdicnvseseess 7, 8, 11

With Our Readers, 13 Const. Rev. 98 (1929) ........... 8

NEWSPAPERS AND PERIODICALS

Pranay Gupte and Bonner R. Cohen, Carol

Browner, Master of Mission Creep, Forbes, Oct. 20,

BOOe GD Tei oc ccctcvcccesccosevccesceceseccecscess 25

Antonin Scalia, How Democracy Swept the World,

Wall Street Journal, Sept. 7, 1999 at A24........... 7

David Schoenbrod, Confessions of An Ex-Elitist,

Commentary, Nov. 1999 at 36...............0000- 24

ix

TABLE OF AUTHORITIES - Continued

Page

HistoricAL AUTHORITIES

Thomas Jefferson, Jefferson’s Notes on the States of

Virginia, Query XIII (Merrill D. Peterson, ed.,

PIP kececncesdedccendccnecunteacendéesccevesesene 6

James Madison, Notes of Debates In the Federal Con-

vention of 1787 (Adrienne Koch, ed., Ohio Univ.

Dy Pid jdncdacebuekiuadedeonbeensseeeuendeceus 3

Baron de Montesquieu, The Spirit of Laws (G. Bell

ee eG, ED EE cccccvnderéceccecsoses 3, 7

The Virginia Report of 1799-1800, Touching of the

Alien and Sedition Laws, Together with the Virginia

Resolutions of December 21, 1798 (Leonard W.

COOH, OB, BEVED cccccccccccccccccccccccscsccecesess 7

PERMISSION TO FILE AS AMICI CURIAE

This amicus curiae brief in support of Respondents is

filed pursuant to Sup. Ct. R. 37.2. Letters of permission

from each party have been filed with this Court.!

7

INTERESTS OF AMICI CURIAE

The Manufacturers Alliance/MAPI Inc. (“MAPI”),2

the Aluminum Association, and the Steel Manufacturers

Association were “industry associations” under the

National Industrial Recovery Act of 1933, which this

Court struck in A.L.A. Schechter Poultry Corp. v. United

States, 295 U.S. 495 (1935) (“Schechter Poultry”).

These associations now represent corporations that

are vitally concerned with the increased stringency of the

National Ambient Air Quality Standards (“NAAQS”) at

issue in this case. The Clean Air Act (“Clean Air Act” or

“CAA”) grants the Environmental Protection Agency

(“EPA”) broad powers over states not attaining these

standards. The states are forced to take action against

businesses, local governments, and others - including

placing sharp curbs on investment in new plant and

' Pursuant to Sup. Ct. R. 37.6, counsel for a party did not

author this brief in whole or in part. No person or entity, other

than the amici curiae, its member, or its counsel, made a

monetary contribution to the preparation and submission of this

brief.

* MAPI filed an amicus brief in support of Respondents’

cross-petition for certiorari, in which MAPI provided a more

detailed statement of MAPI’s history and interest in the

delegation doctrine.

equipment. If a state fails to take action needed to comply

with the NAAQS, the EPA will impose sanctions on the

state government and on private economic activity. 42

U.S.C. §§ 7503(a)(4), 7509 (1994). By tightening the

NAAQS pursuant to its own policy judgment, the EPA

has thrown much of the nation into long-term “nonattain-

ment” and thereby increased its power with serious

adverse consequences for the nation and members of

MAPI.

The authors of this brief have filed amicus briefs in

three previous cases implicating the delegation doctrine,

Clinton v. City of New York, 524 U.S. 417 (1998); Raines v.

Byrd, 521 U.S. 811 (1997); Loving v. United States, 517 U.S.

748 (1996), to delineate the history, purposes, and consti-

tutional significance of the delegation doctrine. They

write this brief on behalf of MAPI, the Aluminum Asso-

ciation, and the Steel Manufacturers Association to

explain how the delegation doctrine applies to this case.

One of the authors of this brief, Professor Schoen-

brod, has a special relationship to the issues in this case,

as he successfully represented environmental organiza-

tions throughout the 1970s in a series of cases that culmi-

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

Cir. 1979), cert. denied, 449 U.S. 1042 (1980) (“Lead Indus-

tries”), a precedent upon which the EPA critically and

futilely relies. Schoenbrod argued for an interpretation of

the Clean Air Act in the 1970s on behalf of environmental

groups that is contrary to the EPA’s claim in this case that

it may choose the extent to which it protects public health

and thus the scope of its power over the states and the

nation. See infra.

SUMMARY OF ARGUMENT

This case offers a classic example of the self-aggran-

dizement by government officials feared by the Framers

of the Constitution. As James Madison stated, “[t]he truth

was that all men having power ought to be distrusted to a

certain degree.”> The delegation doctrine is a fundamen-

tal separation of powers principle that requires the legis-

lative branch to make the laws. In Montesquieu’s words,

which were taken seriously by the Framers: “When the

legislative and executive powers are united in the same

person, or in the same body of magistrates, 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.” Baron de Montes-

quieu, The Spirit of Laws, Book XI, part 6 (G. Bell & Sons,

ed., London 1914).

The Framers’ fundamental understanding of human

nature continues to be relevant. Because the country is

coming into increasing compliance with existing NAAQS,

EPA is losing its power over areas designated in “attain-

ment” with the NAAQS. By tightening those standards

3 James Madison, Notes of Debates in the Federal Convention

of 1787 272 (Adrienne Koch ed., Ohio Univ. Press 1966); see also

id. at 266 (“From the nature of man we may be sure, that those

who have power in their hands will not give it up while they can

retain it. On the contrary we know they will always when they

can rather increase it.”) (statement of Col. George Mason)).

and thereby sharply raising the bar for attainment, it is

attempting to renew its waning power.

One of the ways that the Framers sought to curb self-

aggrandizement by officials was to require that “[aJll

legislative Powers herein granted shall be vested in a

Congress ... ” U.S. Const., art. I, § 1. The delegation

doctrine is a constitutional norm that reflects the letter of

Article I, Section 1, and that prohibits unelected, unac-

countable agency officials from unbounded discretion to

impose regulations. In this case, the delegation doctrine is

a powerful constitutional tool that should inform this

Court's interpretation of Section 109 of the Clean Air Act.

42 U.S.C. § 7409 (1994).

The plain language, structure, and history of the

Clean Air Act as well as common sense dictate a nar-

rower interpretation of the statute than the EPA invoked.

“Protect public health” in the CAA does not grant the

EPA carte blanche to protect health to the extent it

chooses, but rather only to protect health from significant

risk. See infra. This correct and more reasonable inter-

pretation pegs the EPA’s authority to Congress’s policy

determination, satisfies this Court’s delegation doctrine,

and therefore corrects the constitutional violation found

by the court below. See Industrial Union Department v.

American Petroleum Institute, 448 U.S. 607 (1980) (“Ben-

zene”). The EPA sidled towards this interpretation of the

Act only after losing in the court below.* The EPA’s last-

4 In this Court, the Administrator has implied that she

considers the significance of risks by stating that “the health

effects justifying a NAAQS must be ‘adverse’ in the sense that

they are medically significant and not merely detectable.” EPA

minute conversion cannot redeem the rulemaking before

this Court in this case, which was based on a constitu-

tionally fatal interpretation of the CAA.

¢

ARGUMENT

I. CONGRESSIONAL DELEGATION AND THE

DELEGATION DOCTRINE

This Court’s delegation doctrine requires that, at a

minimum, Congress identify an “intelligible principle” to

guide the exercise of delegated legislative power. See, e.g.,

Touby v. United States, 500 U.S. 160, 165 (1991); Mistretta v.

United States, 488 U.S. 361, 372 (1989); Schechter Poultry,

295 U.S. 495 (1935); Panama Refining Co. v. Ryan, 293 U.S.

388, 433 (1935) (“Panama Refining”); J.W. Hampton, Jr. &

Co. v. United States, 276 U.S. 394, 409 (1928) (“J.W. Hamp-

ton”). The doctrine goes to the heart of the Constitution’s

separation of powers and, especially Congress’s role in

Article I, the plain language of which reposes all lawmak-

ing authority solely in Congress. See U.S. Const., art. I,

Br. 24 (internal citation omitted); see also EPA Cert. Pet. 15

(same). But during the rulemakings below, she asserted the

right to render decisions that do not address “what risk is

‘acceptable,’ ” through quantification “or any other metric;”

that are based on “no generalized paradigm;” that are thus

“largely judgmental in nature.” 62 Fed. Reg. at 38,688 (PM),

38,883 (ozone) (1997). In the court of appeals, she continued to

insist that “nothing in the statute requires [her] to make any

specific ‘findings’ or to structure her decisionmaking in any

particular way.” EPA Br. in 97-1441, at 43 (emphasis added). She

specifically rejected the need to determine that there is a

“significant risk of harm.” Id. at 42.

§ 1. “The delegation doctrine [was] developed to prevent

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

757.

In this case, the delegation doctrine is a background

constitutional norm that drives the result. If the EPA’s

interpretation is correct, then the agency’s actions are

unbounded by congressional guidance and fail even the

most lax interpretation of the delegation doctrine. In gen-

eral, however, this Court has found it appropriate, as a

coordinate federal branch, to interpret delegations of

authority narrowly to avoid constitutional violations. See,

e.g., Benzene, 448 U.S. at 646; Kent v. Dulles, 357 U.S. 116,

128-30 (1958); Stoutenburgh v. Hennick, 129 U.S. 141, 149

(1889). Such an interpretation is available here.

A. The Delegation Doctrine Has a Long Pedigree

as a Fundamental and Enforceable Part of the

Constitution

The principle against delegation precedes the draft-

ing of the Constitution. While the Articles of Confedera-

tion were in place, Thomas Jefferson stated that “[o]jur

ancient laws expressly declare, that those who are but

delegates themselves shall not delegate to others powers

which require judgment and integrity in their exercise.”

Thomas Jefferson, Jefferson’s Notes on the State of Virginia,

Query XIII 173 (Merrill D. Peterson, ed., 1975). From the

earliest days of the Constitution, there is ample evidence

demonstrating that the Framers, this Court, and others

believed that representatives should be required to make

the hard policy choices. See Ludecke v. Watkins, 335 U.S.

160 (1948) (discussing Alien Act of 1789); Cargo of the Brig

Aurora v. United States, 11 U.S. (7 Cranch) 382, 388-89

(1813); Montesquieu, supra; Alexis de Tocqueville, Democ-

racy in America 57-58 (Phillips Bradley ed. 1946); The

Virginia Report of 1799-1800, Touching of the Alien and

Sedition Laws, Together with the Virginia Resolutions of

December 21, 1798, at xv, 23 (Leonard W. Levy ed. 1970).

Our Constitution aas been so successful because it

assigns power to entities with meaningful limitations on

their exercise of power. In Justice Scalia’s words, “the

most significant development in the law over the past

thousand years is the principle that laws should be made

not by a ruler, or his ministers, or his appointed judges,

but by representatives of the people.” Antonin Scalia,

How Democracy Swept the World, Wall Street Journal, Sept.

7, 1999 at A24.

The often repeated proposition that Congress regu-

larly violated the delegation doctrine from the beginning,

see, e.g., Cass R. Sunstein, Delegation Canons, 67 U. Chi. L.

Rev. 315, 318 (2000), is simply wrong and springs from a

falsely simplified understanding of what the doctrine

requires. See David Schoenbrod, Power Without Respon-

sibility: How Congress Abuses the People Through Delegation

30-33 (1993) (discussing examples from 18th and 19th

centuries); Marci A. Hamilton, Representation and Non-

delegation: Back to Basics, 20 Carpozo L. Rev. 807 (1999)

(discussing Framers’ intent).

On at least three occasions prior to 1928, this Court

struck statutes on delegation grounds. See Washington v.

W.C. Dawson & Co., 264 U.S. 219, 227 (1924) (prohibiting

Congress from delegating the “power to alter, amend, or

revise the maritime law” to states); United States v. L.

Cohen Grocery Co., 255 U.S. 81, 87-88, 92-93 (1921)

(holding that a vague statute amounted to a delegation by

Congress of legislative power to courts . . . “); Knicker-

bocker Ice Co. v. Stewart, 253 U.S. 149, 164 (1920) (holding

improper delegation of maritime law to the states). Thus,

the often-repeated proposition that this Court never

struck statutes for unconstitutionally delegating prior to

1935 is also wrong. See, e.g., Sunstein, supra.

In 1928, this Court empowered an unelected commis-

sion to set tariffs. The Court announced a new test: “If

Congress shall lay down by legislative act an intelligible

principle to which the person or body authorized to fix

such rates is directed to conform, such legislative action

is not a forbidden delegation of legislative power.” /.W.

Hampton, 276 U.S. at 409. The “intelligible principle” in

that case provided only limited direction to the commis-

sion so that the statute, in fact, delegated legislative

power. President-elect Herbert Hoover objected to the

new Commission on delegation grounds, saying that:

There is only one commission to which del-

egation of that authority can be made. That is

the great commission of their own choosing, the

Congress of the United States and the President.

It is the only commission which can be held

responsible to the electorate.

With Our Readers, 13 Const. Rev. 98, 100 (1929) (quoting

President Hoover’s speech of Oct. 15, 1928).

Despite the broad and troubling language of /.W.

Hampton, it was used by this Court to invalidate New

Deal laws that evidenced the tremendous increase in the

scope of delegation. Justice Cardozo, concurring in a

unanimous decision to strike the National Industrial

Recovery Act, called it “delegation running riot.” Schech-

ter Poultry, 295 U.S. at 553. The constitutional potential in

the /.W. Hampton rule is emphasized by the 9-0 and 8-1

votes finding Congress’s delegation unconstitutional in

Schechter Poultry, id. at 551, and Panama Refining, 293 U.S.

at 433, respectively.

B. The Supreme Court's Delegation Jurisprudence

Needs Reinforcement to Serve the Goals of the

Delegation Doctrine

President Franklin Roosevelt’s court-packing plan,

and not intellectual persuasion, softened the resolve of

some members of the Court to invalidate congressional

delegations. See Henry J. Abraham, Justices and Presidents

198 (1974). When the dust settled, it became clear that the

fault was not altogether with the President. The Court

itself had let the policy proclivities of some of the Justices

unduly drive its jurisprudence, especially in substantive

due process and federalism decisions. See, e.g., Carter v.

Carter Coal Co., 298 U.S. 238 (1936); Railroad Retirement

Board v. A.‘ Railroad Co., 295 U.S. 330 (1935). Having

been caught . h its hand in the policy “cookie jar,” and

shaken by the court-packing plan, the Court retreated

from the bedrock requirement of Article I that Congress

take responsibility itself to make the law. As John Hart

Ely has put it, the delegation doctrine suffered “death by

association.” John Hart Ely, Democracy and Distrust: A

Theory of Judicial Review 133 (1980). The limitations on the

scope of the federal government suffered a similar fate as

the Court seemingly gave the “commerce power” a limit-

less interpretation. See, e.g., Wickard v. Filburn, 317 U.S.

111 (1942); United States v. Darby, 312 U.S. 100 (1941);

10

National Labor Relations Board v. Jones & Laughlin Steel

Corp., 301 U.S. 1 (1937).

Nonetheless, recognizing the bedrock purpose of the

delegation doctrine, this Court has never completely

abandoned it. It has not disowned Panama Refining and

Schechter Poultry. Rather, it bent the test of delegation

announced in J.W. Hampton to accommodate the changing

times. Still, the delegation doctrine has retained some

vitality. Various coalitions of Justices have struck particu-

lar agency laws on delegation principles. Note, for exam-

ple, the following:

e Hampton v. Mow Sun Wong, 426 U.S. 88, 116-17 (1976),

in which the Court struck a statute for delegating to

the Civil Service Commission the power to make a law

preventing legal aliens from holding civil service jobs.

See id. at 122 (Rehnquist, J., dissenting).

e INS v. Chadha, 462 U.S. 919 (1983), in which the Court

struck hundreds of statutes that delegated to one or

two houses of Congress the lawmaking power dele-

gated by the Constitution to the Article I legislative

process. See id. at 986-87 (White, J., dissenting).

¢ Void for vagueness cases requiring not only that the

public be given notice of what is forbidden, but also

that executive officials be denied the power to make

law. See, e.g., Smith v. Goguen, 415 U.S. 566, 572-73

(1974).5

e Various cases stricking city ordinances and state or

federal statutes delegating overly broad discretion to

> The void for vagueness doctrine applies to civil as well as

criminal offenses, see Jordan v. De George, 341 U.S. 223, 231-32,

reh’g denied, 341 U.S. 956 (1951), and statutes that delegate to

agencies often make violations of agency created laws a

criminal offense.

11

regulate or punish speech or religion. See generally

Laurence H. Tribe, American Constitutional Law

§§ 12-38 (2d ed. 1988).

e Various cases interpreting statutes to avoid perceived

delegation problems. See, e.g., Benzene, 448 U.S. at 646;

National Cable Television Ass'n v. United States, 415 U.S.

336, 340-41 (1974). Relatedly, in AT&T Corp. v. lowa

Public Utilities Bd., 525 U.S. 366 (1999), the Court

required an agency to reconstrue a statute to avoid

delegation problems.°®

¢ Clinton v. City of New York, 524 U.S. 417 (1998), in

which the Court struck Line Item Veto Act on Present-

ment Clause grounds, where statute delegated to the

President the legislative power to repeal items of

spending.

Although this Court has struck agency laws on dele-

gation grounds in many special circumstances, it has

affirmed many delegations that appear extraordinarily

broad. See, e.g., Mistretta, 488 U.S. at 422 (Scalia, J., dis-

senting); United States v. Rock Royal Co-op, 307 U.S. 533,

574-76 (1939) (upholding statute that delegated authority

to make regulations to create “orderly” markets while

taking the interest of consumers into account). Thus, the

hit-or-miss enforcement of the delegation doctrine con-

tinues to cause harm to representative democracy and

government accountability.

6 Scholars recognize these cases as applications of

delegation principles. See, e.g., Lisa S. Bressman, Essay: Schechter

Poultry at the Millennium: A Delegation Doctrine for the

Administrative State, 109 Yale L. J. 1399 (2000); John F. Manning,

Textualism as a Nondelegation Doctrine, 97 Colum. L. Rev. 673

(1997); Cass R. Sunstein, Delegation Canons, 67 U. Chi. L. Rev.

315 (2000).

12

Just as this Court has seen fit to rebuild the fences

around Congress’s power through its recent Commerce

Clause and Fourteenth Amendment, Section 5, jurispru-

dence, it should reinforce its delegation doctrine now. See,

e.g., United States v. Morrison, 120 S. Ct. 1740 (2000); Kimel

v. Florida Bd. of Regents, 528 U.S. 62 (2000); City of Boerne v.

Flores, 521 U.S. 507 (1997); United States v. Lopez, 514 U.S.

549 (1995). Because this case concerns EPA’s interpreta-

tion of the CAA, it offers the opportunity for this Court to

vindicate the core values of the delegation doctrine with-

out having to reach a holding on the test that the delega-

tion doctrine requires.

The doctrine plainly counsels against the sort of

unlimited discretion that the unelected EPA Administra-

tor claims here. The EPA’s statutory interpretation should

be rejected, because the statute’s plain language affords

an intelligible principle that Congress intended. “Protect

public health” in Section 109 requires not the de minimis

showing favored by the Administrator in this rulemaking

but rather a showing of significant risk to health. Reading

“public health” to require a showing of significant risk to

health would provide a meaningful check on the EPA and

save the Court from reaching a holding that the Clean Air

Act violates the Constitution.

II. THIS COURT SHOULD REJECT THE EPA’S

INTERPRETATION OF SECTION 109 OF THE

CLEAN AIR ACT

As misinterpreted by the EPA in the rulemaking,

Section 109 violates this Court’s delegation doctrine,

while the proper interpretation of the statute does not.

This Court should correct the agency’s error by reading

the statute correctly.

13

A. The EPA’s Interpretation Fails to Provide An

Intelligible Principle to Bound Its Authority

Section 109 empowers the EPA to set the primary

NAAQS at a level “requisite to protect the public health”

with “an adequate margin of safety.” 42 U.S.C.

§ 7409(b)(1) (1994). The EPA chose not to base the revised

standards on significant risks to health. Rather, it

embraced the power to set standards whenever it deter-

mined any threat to human health was sufficient, accord-

ing to its determination. See note 4, supra. This circular

formulation provides the EPA with an elastic standard

that allows it to set the standard where it wants. In effect,

it has arrogated to itself the power to determine the scope

of its power over the states and the private sector, and

has not been afraid to wield this power.

Common sense and the plain language of the Act,

reinforced by the structure, institutional context, and the

history of the statute, make clear that Congress enacted a

law that requires a showing that the risk to public health

is significant. In framing the Clean Air Act in 1970, it

would have made no sense for Congress to mandate a

zero-tolerance standard for NAAQS. Congress knew that

most pollutants presented some risk to health at any

level, no matter how low and had no intention of allow-

ing the primary standards to be set at the zero level

required to eliminate all risk. Reflecting on the clean air

legislation of 1970, its principle sponsor, Sen. Edmund

Muskie, stated:

Our public health scientists and doctors have

told us that there is no threshold, that any air

pollution is harmful. The Clean Air Act is based

on the assumption, although we knew at the

14

time it was inaccurate, that there is a threshold.

When we set the standards, we understood that

below the standard that we set there would still

be health effects.

Clean Air Act Amendments of 1977: Hearings Before the

Subcom. On Environmental Pollution of the Senate Comm. On

Environment and Public Health, 95th Cong., 1st Sess., pt. 3

at 8 (1977).

While the EPA has not set any NAAQS at zero, it

failed in the rulemaking to identify the principle it

employs to decide the extent to which it will protect

health. The agency’s position that the statute bars it from

considering the cost or feasibility of achieving the

NAAQS, precludes it from falling back on a traditional

“public interest” standard because then it would have to

consider costs. The only factor the EPA identified as

relevant was the need to protect health, but that factor

does not explain the basis for its deciding where to set the

standards short of zero.

The agency not only fails to identify any intelligible

principle, it also hides the basis of its decision. Even

under a “public interest” standard, an agency must

explain its reasoning and that reasoning is subject to

judicial review. See Citizens To Preserve Overton Park, Inc.

v. Volpe, 401 U.S. 402, 415 (1971). The EPA’s interpretation

would allow it to escape the need to explain its reasoning,

and therefore would violate the delegation doctrine. Judi-

cial review of agency policymaking is central to judicial

efforts to square permissible delegation with the Consti-

tution. See Amalgamated Meat Cutters and Butcher Workmen

v. Connolly, 337 F. Supp. 737, 759 (D.D.C. 1971) (three-

judge panel); Arizona v. California, 373 U.S. 546, 626 (1963)

15

(Harlan, J., dissenting in part); Yakus v. United States, 321

U.S. 414, 425-26 (1944).

Because the statute, as the EPA interprets it, fails to

manifest an intelligible principle of decision and allows it

to evade judicial review on the key choice in issue, it is

unconstitutional under this Court’s delegation doctrine.

The requirement that a statute provide an intelligible

principle is applied particularly strictly where, as here,

the statute has an economy-wide impact, Clinton, 524 U.S.

at 442, and where the agency would otherwise have a

self-contradictory assignment. Schechter Poultry, 295 U.S.

at 102.

The lack of an intelligible principle is also partic-

ularly worrisome where a federal agency would other-

wise have broad discretion to grow its power over the

states. The tougher the EPA makes its primary standard,

the more power it has over the states. As this Court

previously acknowledged, with the Clean Air Act, Con-

gress “took a stick to the states.” Train v. Natural Resources

Defense Council, 421 U.S. 60, 64 (1975). It is the EPA, with

its power to sanction the states that wields that stick, and

it makes that stick stouter when it tightens the NAAQS.

B. The EPA Erred in Overlooking the Clear Mean-

ing of the Clean Air Act, Which Is Consonant

with this Court’s Delegation Doctrine

Contrary to the EPA’s interpretation, the statute’s

clear meaning commands the EPA to set the primary

standards to protect health against significant, but not

insignificant threats to health. The pivotal words of the

CAA, inserted in 1970, require the agency to set the

16

primary standards at a level which, “allowing an ade-

quate margin of safety . . . protect[s] the public health.”

42 U.S.C. § 7409(b)(1) (1994). In the context of this statute

at that time, the phrase “protect the public health” meant

that the EPA should protect people from threats to their

health that are significant.

In enacting air pollution legislation throughout the

1960s and then, most importantly, in 1970, Congress

worked closely with the public health professionals of the

Public Health Service in the Department of Health, Edu-

cation, and Welfare (“HEW”).”7 Sen. Muskie, the chief

author of the 1970 Clean Air Act, acknowledged that

Congress, in crafting the provisions dealing with primary

ambient air quality standards in 1970, “turned to the

Public Health Service. We asked the Public Health Service

to guide us... ” 123 Cong. Rec. 18,055 (1977). At the

same time as he signed the act, President Nixon created

the EPA and assigned HEW’s pollution control functions

to it. See Reorganization Plan No. 3 of 1970, § 2(a)(3)-(4), 3

C.F.R. 1072 (1970), reprinted in 84 Stat. 2086 (1970).

Because Congress worked so closely with public

health professionals in drafting the legislation and

charged them with its implementation, its words should

be understood from the perspective of the public health |

profession. The core concerns and methods of the public

health profession, especially in 1970, were far different

than those of contemporary environmentalism. A book

published in 1965 under the sponsorship of the U.S.

7? For a brief history of federal air pollution control prior to

1970, see Arnold W. Reitze, The Legislative History of U.S. Air

Pollution Control, 36 Houston L. Rev. 679, 696-702 (1999).

17

Public Health Service and the American Public Health

Association acknowledged at the outset that “much of

public health law derives historically from measures to

prevent the spread of contagion and to control epidemics

- and notions of an epidemiological nature still dominate

much of public health law.” Frank P. Grad, Public Health

Law Manual: A Handbook on the Legal Aspects of Public

Health Administration and Enforcement 8 (1965). The book

went on to warn against a fashion

in some circles of the public health professions

to downgrade the importance of preventive epi-

demiologic measures, stressing the more posi-

tive aspects of the job of public health to a create

an affirmative wholesome environment... .

Although esthetic considerations and the aim of

a better, cleaner, more enjoyable life may furnish

important motivations in the enactment and

enforcement of regulations to improve the envi-

ronment, nevertheless, as a matter of law such

provisions must have some considerable relation-

ship to the maintenance of health and the pre-

vention of disease.

Id. at 9 (emphasis added).

In dealing with air pollution in the time leading up to

the insertion of Section 109 into the Clean Air Act in 1970,

there was plenty of grist for the epidemiological mill. Key

motivations for congressional action include a “Killer

Smog” in London in 1962, blamed for 340 deaths; a simi-

lar inversion in New York in 1963, blamed for 200 deaths;

and another episode in New York in 1966, blamed for 168

deaths. Reitze, 698-99 n.6, supra. -

18

In the search for significant threats or benefits to

public health, epidemiologists, and by extension, the pub-

lic health and preventive medicine practitioners who rely

upon epidemiology, are concerned with much more than

statistical significance. As one of the leading figures in

epidemiology wrote in the 1961 edition of his interna-

tionally recognized standard work on the topic:

a difference can be very highly significant and

yet of no real importance whatsoever. Given a

large enough number of observations, an inci-

dence of 60 per cent. must differ ‘significantly’

from an incidence of 59 per cent., but that differ-

ence of 1 per cent. may be no practical impor-

tance in the affairs of life. ‘Significant’ and

- ‘important’ are not synonymous.

Sir A. Bradford Hill, Principles of Medical Statistics 142 (7th

ed. 1961). Hill punctuated the end of the 1971 edition

with a further observation on the imperative to search for

correlations that are not only statistically significant, but

also important:

This is what matters. This is what we want to

know and should be told. For it is upon this

difference that we shall base our future actions

whether it is worthwhile exhibiting the drug or

not. . . . Technical skills, like fire, can be an

admirable servant and a dangerous master.

Hill, 323, supra.

In sum, the key language of the statute — “protect

public health” — if read in the relevant context, yields an

intelligible principle. That context is the world of the

public health profession in 1970, which would have

understood “protect public health” to mean protect it

19

from threats that are significant, not to iry to make the

world perfectly safe or as safe as the EPA finds it institu-

tionally convenient.

An examination of the statute as a whole reinforces

what common sense and the legislative history tell us.

The requirement that the EPA include an “adequate,” and

not a “perfect,” “margin of safety,” connotes a cut-off

based on the significance of the risk. 42 U.S.C.

§ 7409(b)(1) (1994). The NAAQS are based upon the crite-

ria documents, which must evaluate both the “kind and

extent” of a pollutant’s impact on health. 42 U.S.C.

§ 7408(a)(2) (1994).

The distinction between concerns that rise to threats

to “public health” and lesser concerns is buttressed by

the differences between the primary and secondary stan-

dards. While the primary standards are to “protect public

health,” the secondary standards are to “protect welfare.”

The latter also bear on health. Section 302h of the statute

defines public welfare to include “comfort and well-

being.” 42 U.S.C. § 7602(h) (1994). The 1970 statute thus

put health concerns on a two-track system, with the sig-

nificant ones dealt with under the primary standards.

In keeping with this two-track system, the 1970 legis-

lation puts a far higher priority on achieving the primary

standards. Section 110(a)(2)(A)(i), added to the CAA in

1970, established a schedule under which state imple-

mentation plans must meet the primary standards within

three years, while the secondary standards must be met

in a “reasonable time.” Pub. L. 91-604, § 4(a), 84 Stat. 1680

(1970). Although the three-year deadline for the primary

standards proved unrealistic, that deadline is shorn of

20

any sense if the NAAQS protect against all threats to

health, no matter how trivial. In contrast, the primary

standards embody the public health mandate to protect

health from significant risks. The pursuit of less pressing

objectives - “esthetic considerations and the aim of a

better, cleaner, more enjoyable life,” as Professor Grad

put it — were left to the flexibly enforced secondary

standards as well as other flexible provisions of the stat-

ute.® Grad, supra.

C. The EPA’s Strategic Maneuvers

The agency’s first set of primary standards issued in

1971 shed little light on its interpretation of Section 109

because its explanations were perfunctory. See, ¢.g., 36

Fed. Reg. 8186-87 (1971). Moreover, none of these primary

standards was subjected to judicial review. The battles

over airborne lead pollution produced the first judicial

and administrative pronouncements pertinent to the

EPA’s power to set standards based on public health.

In 1970, the most troubling air pollutant was lead. See

Gregg Easterbrook, A Moment on the Earth 182 (1995). As

to lead, Congress spoke as if the CAA required quick

action and the EPA initially acted as if it would list lead

as a criteria pollutant and regulate the lead content of the

8 See, e.g., 42 U.S.C. § 7411 (1994) (new source performance

standards set to take account of cost); 42 U.S.C. § 7416 (1994)

(states retain authority to make air cleaner than NAAQS).

21

leaded gasoline used by pre-1975 vehicles.? Faced with

opposition, the EPA backed down.

Environmental groups represented by one of the

authors of this brief (Schoenbrod) filed a petition for

review alleging that the EPA had illegally delayed deci-

sion on regulating lead in gasoline and the D.C. Circuit

ordered the agency to decide. Natural Resources Defense

Council v. EPA, DC. Cir. No. 72-2233 (Order, Oct. 28,

1973). Faced with intense controversy, the EPA promul-

gated a compromise regulation that left much of the lead

in gasoline. See John R. Quarles, Cleaning Up America: An

Insider's View of the Environmental Protection Agency 119-40

(1976).

To force the EPA to implement fully the statutory

policy to protect public health on a timetable, Schoenbrod

filed an action to require the EPA to list lead as a criteria

pollutant. The EPA took the position that whether it lists

a pollutant, and thus the extent to which it protects health

from that pollutant, is within its discretion. The Second

Circuit rejected this argument, in part on the basis that

“the deliberate inclusion of a specific timetable for the

attainment of ambient air quality standards incorporated

by Congress in §§ 108-110 would become an exercise in

futility if the Administrator could avoid listing pollu-

tants...” Natural Resources Defense Council v. Train, 545

F.2d 320, 327 (2d Cir. 1976).

% See EPA Office of Air Quality Criteria Development,

Airborne Lead (Draft, Jan. 7, 1971); 36 Fed. Reg. 1486 (1971)

(advanced notice of rulemaking on lead in gas).

22

By the same logic, Sections 108-110 would be an

exercise in futility if “protect public health” grants the

EPA discretion to set the primary NAAQS wherever it

desires. As the Second Circuit concluded, “[t]he Congress

sought to eliminate, not perpetuate, opportunity for

administrative foot-dragging.” Id. at 328. In sum, the

extent to which it protects health from a criteria pollutant

is a statutory policy that Congress has made and the EPA

must implement, not an administrative policy choice for

the agency to make.

In striking contrast to the Second Circuit, the D.C.

Circuit, in the Lead Industries opinion upon which the EPA

critically relies, agreed with the EPA that the extent to

which the agency protects health is the agency’s policy

choice. Lead Industries, 647 F.2d at 1153 (“the broad discre-

tion Congress gave [the Administrator] to decide what

effects to protect against”). Strangely, however, the

author of that opinion, Judge Skelly Wright, previously

read the statute much as the Second Circuit did. The

occasion was a petition to review the regulations to pro-

tect health from the leaded gasoline used in pre-1975

vehicles. The EPA had issued it under the “will endan-

ger” standard of Section 211(c)(1)(A) of the CAA. 42

U.S.C. § 7545(c)(1)(A) (1994). The D.C. Circuit endorsed

the Administrator’s reading of that language to mean —

“presents a significant risk of harm” and further found

that the language is analogous to the “protect public

health” with “an adequate margin of safety” language of

Section 109. Ethyl Corp. v. EPA, 541 F.2d 1, 13 (D.C. Cir.

1976) (en banc).

In a dissent from a panel decision reversing the regu-

lation, Judge Wright found that the statutory mandate to

23

engage in the uncertain business of protecting against

risk inevitably gives the agency some measure of discre-

tion. Ethyl Corp. v. EPA, 5 Envtl. Law Rep. 20,096,

20,126-20,128 (D.C. Cir. Jan. 28, 1976). But, he cautioned:

All this is not to say that Congress left the

Administrator free to set policy on his own

terms. To the contrary, the policy guidelines are

freely prescribed, both in the statutory term

“will endanger” and in the relationship of that

term with other sections of the Clean Air

Act... . “[W]ill endanger” contemplates regula-

tion of emissions “present[ing] a significant risk

of harm.” But while Congress has made the

basic policy decision, the Administrator is left,

in his judgment, to interpret and apply it.

Id. at 20,128.

When Judge Wright’s dissent became the basis for the

majority opinion in the en banc decision upholding the

regulation, the passage quoted was changed to grant the

EPA far broader discretion. The revised opinion deletes

the last sentence in the quoted passage, which had made

clear that the EPA’s job is to not to make policy, but to

interpret and apply the policy that Congress has made.

Ethyl Corp., 541 F.2d at 29. Substituted in its place is the

holding that the EPA’s job is to make “choices of policy.”

Id. (quoting Amoco Oil Co. v. EPA, 501 F.2d 722, 741 (D.C.

Cir. 1974)).

Judge Wright viewed this expanded version of the

EPA’s discretion not just as a practical side effect of

regulating in the face of uncertainty, but rather also as a

deliberate judicial policy choice to favor health protec-

tion: “Regulators such as the Administrator must be

24

accorded flexibility, a flexibility that recognizes the spe-

cial judicial interest in favor of protection of the health

and welfare of people, even in areas where certainty does not

exist.” Id. at 24 (emphasis added). In sum, a sharply

divided D.C. Circuit decided that EPA may make “legisla-

tive policy judgments.” Id. at 26.

Following the logic of his en banc opinion, Judge

Wright's opinion affirming the EPA’s NAAQS for lead

approved the notion that the EPA performs an “ ‘essen-

tially legislative task.’ ” Lead Industries, 647 F.2d at 1147

(quoting Automotive Parts & Accessories Ass'n, Inc., 407

F.2d 330, 338 (D.C. Cir. 1968)).

With the affirmation of the lead ambient standard,

Schoenbrod had won a series of courtroom battles, but

lost the war to get the EPA to protect a generation of

children from the lead in gasoline used by pre-1975 vehi-

cles. Although Congress had, in Sen. Muskie’s words,

promised that Congress had made “the hard choices”

(116 Cong. Rec. 42,381 (1970)), there was enough play in

the system for the EPA to make up the policy as it moved

along, as exemplified by Judge Wright’s view that the

agency may make legislative policy on the extent to

which it shall protect public health. Ironically, the chil-

dren would have received more protection from lead if

Congress had been prohibited from using delegation to

duck the hard choice about regulation of lead in gasoline.

David Schoenbrod, Confessions of An Ex-Elitist, Commen-

tary, Nov. 1999 at 36, 38.

While the EPA’s policymaking latitude harmed public

health in the 1970s, it works another kind of harm today.

Today the EPA feels different institutional imperatives.

25

Now, it can stand up to powerful industries. It has a large

and influential constituency that wants pollution reduced

regardless of evidence about its public health signifi-

cance. Easterbrook, xiii-xv, supra. The EPA itself has the

natural propensity of mature governmental institutions to

prolong and enhance its mandate. See Pranay Gupte and

Bonner R. Cohen, Carol Browner, Master of Mission Creep,

Forbes, Oct. 20, 1997 at 170.

Of particular relevance to this case, because the

nation is coming into increasing compliance with the

current NAAQS, EPA's most important powers under the

CAA are withering away. The real heft in the “stick” that

the CAA gives EPA to wield against the states comes

from the power to force them to take whatever action is

necessary to attain the NAAQS. 42 U.S.C. §§ 7501-7515

(1995). Additionally, the power that Section 202(i) of the

CAA gives EPA to increase the stringency of the emission

limits on new cars and light duty trucks is available only

if EPA determines that there is a “need for further reduc-

tions in emissions in order to attain or maintain” the

NAAQS. 42 U.S.C. §§ 7521(i)(2)(A), (i)(3)(B)(i) (1994). For-

tunately for the nation and unfortunately for EPA’s

power, there is, in EPA’s words, “dramatic improvement”

in air quality.!° According to EPA’s own data, the bulk of

the nation’s people live in areas in attainment with the

current NAAQS.!! Even as to the most widely violated of

10 EPA, Latest Findings on National Air Quality: 1999 Status

and Trends (Aug. 2000), available at <http://www.epa.gov/

airtrends/>, at 5.

11 The number of people living in counties with air quality

concentrations above the level of the current NAAQS in 1999 is

26

the current NAAOS, that for ozone, EPA foresees increas-

ing compliance. In promulgating the strengthened ozone

standard at issue in this case, EPA identified only nine

areas predicted to be in violation of the current NAAQS.

“Regulatory Impact Analyses for the Particulate Matter

and Ozone National Ambient Air Quality Standards and

Proposed Regional Haze Rule” (July 16, 1997) at 4-58.12

With the strengthened NAAQS, EPA would renew its

waning power by increasing the sce de and the gravity of

nonattainment.

While the EPA’s institutional imperatives have

changed since the 1970s, the language and meaning of

Section 109 of the CAA have not. It still requires the EPA

to gear the primary ambients standards to protect public

health. The EPA departed from its public health roots not

only by ignoring the significance of risk, but also by

refusing to ever consider that reducing ozone will

increase the incidence of skin cancer.'* Caught out on a

limb by the Court of Appeals, the agency attempted to

crawl back. It did not apply for certiorari on whether it

could ignore the beneficial effects of ozone. Rather, to

as follows: carbon monoxide: 9.1 million; lead: .4 million;

nitrogen dioxide: zero; ozone: 53.8 million; particulate matter:

20.3 million; sulfur oxides: zero. Id.

12 An earlier, more specific analysis by the EPA identified

only thirty-four counties that would be in nonattainment in

2007. Regulatory Impact Analysis for Proposed Ozone National

Ambient Air Quality Standard (Draft, Dec. 1996) at VI-6. Most of

these areas were predicted to be in only “ ‘marginal’

nonattainment.” Id.

13 American Trucking Ass'n, Inc. v. EPA, 175 F.3d 1027, 1051

(1999).

27

cover its trail of boundless discretion it now claims that it

applied something like a standard of significance all

along. See note 4, supra. This post-hoc rationalization

cannot save a rulemaking based upon another interpreta-

tion of the statute, which is incorrect and violates the

delegation doctrine. Id.

Sen. Muskie made clear his belief that the statute

should be interpreted to avoid delegation problems. As

he stated in 1970, “We have an obligation to lay down the

standards.” 1 Legislative History of the Clean Air Act

Amendments of 1970 at 232 (Senate Debates on S. 4358,

Sept. 21, 1970) (statement of Sen. Muskie). He later elabo-

rated:

Often the statutory guidance is so detailed that

EPA is left with little room for the exercise of

discretion. Nevertheless, since the most detailed

air pollution control decisions represented

major social, economic, and political choices, the

Congress had to be specific; these were the

kinds of choices and balancing neither the agen-

cies nor the courts should or probably would

have made.

Edmund Muskie & Elliot Cutler, A National Environmental

Policy: Now You See It, Now You Don't, 25 Maine L. Rev.

163, 168 (1973) (writing about air and water statutes).

The resulting statutory standard, geared to signifi-

cant risk to health, satisfies this Court’s present delega-

tion doctrine. See Benzene, 448 U.S. 607 (1980). No doubt

such a principle leaves the agency with some leeway, not

only in evaluating the scientific evidence, but also in

interpreting a standard of significance. But that leeway is

cabined by the traditions of public health practice and,

28

eventually, the agency’s prior interpretations. Even those

who would read the delegation doctrine aggressively do

not require that Congress answer all the questions in

advance, but rather provide an understandable bench-

mark for subsequent application. See Schoenbrod, Power

Without Responsibility 181-85 (1993). Whether Congress

should be held to a higher standard, id. at ch. 12; Marci A.

Hamilton, Discussions and Decisions: A Proposal to Replace

the Myth of Self-Rule with an Attorneyship Model of Repre-

sentation, 69 N.Y.U. L. Rev. 477, at 537-39 (1994), is a

question not presented in this case.

The Court of Appeals panel felt precluded from

avoiding the delegation problem by interpreting the stat-

ute itself for several reasons. First, the D.C. Circuit had

previously interpreted Section 109 to grant the EPA broad

discretion on the level at which to set the primary stan-

dard. That is no barrier to this Court. Second, the panel

believed itself precluded by Chevron U.S.A., Inc. v. Natural

Resources Defense Council, Inc., 467 U.S. 837 (1984), from

taking the first step in interpreting the statute. But, Chev-

ron should be no obstacle to the courts interpreting Sec-

tion 109 of the CAA, where Congress intended not to

delegate broad policymaking power. In any event, dele-

gation is a core, structural constitutional principle that

precedes the Chevron rule.

CONCLUSION

The Administrator’s interpretation of Section 109 of

the Clean Air Act is on a collision course with the funda-

mental principles of this Court’s delegation doctrine. A

29

more reasonable interpretation is available, however,

which confines the Administrator’s discretion as it saves

the statute. The language of the Act, the legislative his-

tory, and plain common sense lead to the conclusion that

“protect public health” means protect it from significant

risk, not whatever risk the Administrator is moved to

protect. For this reason, the decision below should be

AFFIRMED.

Respectfully submitted,

Davip SCHOENBROD

Marci A. HAMILTON

*Davip SCHOENBROD

New York Law School

57 Worth Street

New York, New York 10013

(212) 431-2339

(212) 431-9205 (facsimile)

dschoenbrod@nyls.edu

Marci A. HAMILTON

40 Washington Square South

New York, New York 10012

(212) 992-8824

(212) 995-4659 (facsimile)

hamilton02@aol.com

DesorAH PAULus

250 Joralemon Street

Brooklyn, New York 11201

(718) 780-7981

*Counsel of Record