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

FILED

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No. 99-1257 CLERK

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Supreme Court, U.S.

In the Supreme Court of the United States

OctToser Term, 2000

Caror M. BROWNER, ADMINISTRATOR OF

THe ENVIRONMENTAL PROTECTION AGENCY.

ET AL., PETITIONERS,

AMERICAN TRUCKING ASSOCIATIONS, INC... FT AL. RESPONDENTS.

On Writ of Certiorari

to the United States Court of Appeals

for the District of Columbia Circuit

BRIEF AMICUS CURIAE OF

PEOPLE FOR THE U.S.A. and

THE ALLIANCE FOR AMERICA

IN SUPPORT OF RESPONDENTS

CHRISTOPHER C. HORNER

Counsel of Record

and Counsel for Amici Curiae

813 Duke Street

Alexandria, Virginia 22314

(703) 549-4989

QUESTION PRESENTED

Parties to this Brief Amicus Curiae address only Question 1:

Whether Section 109 of the Clean Air Act (CAA), 42

U.S.C. 7409, as interpreted by the Environmental Protection

Agency (EPA) in setting revised National Ambient Air Quality

Standards (NAAQS) for ozone and particulate matter, effects

an unconstitutional delegation of legislative power.

TABLE OF CONTENTS

STATEMENT OF INTEREST--- ]

QUESTION PRESENTED 2

SUMMARY OF ARGUMENT — The EPA has usurped

legislative power in violation of the non-delegation doctrine

which must be cured by narrow statutory invalidation. ------ 2

I. Standard setting is a “high” delegation. --3

Il. The Court can rule narrowly, thus with measured effect. 4

III. The Court should continue to recognize that the

non-delegation doctrine acts against Congress. ----------- 8

IV. The Appeals Court’s tentative answer to Question One 10

V. Standard of Review ---- 13

VI. The Vitality of Non-Delegation --- --- 16

VII.Chevron begs Schechter —

The Need for Non-Delegation 20

VIII.Separation of Powers Jurisprudence is, by nature and

by design, Formalistic. 22

IX. A narrow but firm decision will have

limited, measured and necessary effects. 26

CONCLUSION — A narrow but firm holding is called for

30

TABLE OF ay

Cases

A.L.A. Schechter Poultry Corp. v. U.S.,

295 U.S. 495 (1935) 4, 8, 16-21

Ashwander v. TVA, 297 U.S. 288 (1936) 7

American Trucking Associations, Inc., et al. v. U.S.E.PA. et al.

175 F. 3d 1027 (1999) 2,3 n. 2,5, 10 n. 7, 12

Chevron U.S.A., Inc. v. NRDC, 467 U.S. 837 (1984

; 6, 13, 20, 21, 25

Clinton v. New York, 524 U.S. 417 (1998) 22-23

Dred Scott v. Sanford, 60 US (19 How.) 393(1857) --------- 16

J. W. Hampton, Jr., & Co. v. U.S., 276 U.S. 394 (1928)

14n. 11,17

Industrial Union Dept. v. American Petrol. Inst.,

448 U.S. 607 (1980) 14 n. 10, 16, 26

INS v. Chada, 462 U.S. 919 (1983) 22, 26

Mistretta v. U.S.,488 U.S. 361 (1989) 5,19

NLRB v. Jones & Laughlin Steel Corp., 301 U.S. 1 ---------20

Opp Cotton Mills v. Administrator of W. and H. D..,

312 U.S. 126 (1941) 18

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

Touby v. U.S., 500 U.S. 160 (1991) ---- 120.9

U.S. v. Butler, 297 U.S. 1 (1936) 15n. 11

U.S. v. Darby, 312 U.S. 100 (1941) 18

U.S. v. Riverside Bayview Homes, 474 U.S. 121 (1985)

23, 24n 13

TABLE OF AUTHORITIES cont.

U.S. v. Salerno, 481 U.S. 739 (1987) 6

Wallace v. Bone, 286 S.E. 2d 79 (1982 N.C.) ----22

Webster v. Reproductive Health Services,

492 U.S. 490 (1989) --- ---6, 7 n. 4, 8 n. 6

West Coast v. Parrish, 300 U.S. 379 (1937) --- 19

Yakus v. U.S., 321 U.S. 414 (1944) ----------------------------- 16

U.S. Constitution and Codes

U.S. Constitution, Art. 1, Sec. 7 ------------- 23

U.S. Constitution, Art. I, Sec. 8 --- 20

Administrative Procedures Act

5 U.S.C. § 706 --------------------------------- 15

Clean Air Act, 42 U.S.C. 7401 et Seq ----------------------"--> 2

Section 109, § 7409 --------------------- 2, 5, 10, 11 n. 7, 30

Section 110, § 7410 -------------------------------------- 3n.2

Section 181, § 7511 ------------------------------------------ 27

§ 7607 ------------------------------------------ 15

Clean Ait Act Amendments of 1990,

Pub. L. No. 101-549, 104 Stat.2399 ------------------ 27

Clean Water Act, 33 U.S.C. 1251 et seq

Section 404, 33 U.S.C. § 1344 --- ---- 24n. 13

Fair Labor Standards Act of 1938

52 Stat. 1060 ----------------------- --19

Line Item Veto Act, 2 U.S.C §691 et seq ---------------------- 22

§691 22

National Industrial Recovery Act of June 16, 1933

48 Stat.195 --- 17

Regulatory Flexibility Act

5 U.S.C. § 601 4n. 3, ll n. 7, 26

Sentoncing Reform Aci of 1984

28 U.S.C. § 994 -5

Small Business Regulatory Enforcement Fairness Act,

Pub. L. No. 104-172i, tit. II, 110 Stat. 857-74 ------ 11 n.7

iv

TABLE OF AUTHORITIES cont.

Federal Register

62 Fed. Reg.

§ 38,688 13

§ 38,702/2 3n.2

§ 38,868/3 ll n.7

§ 38,887/2-3 3n.2

Miscellaneous

Breyer, Stephen, Breaking the Vicious Cycle - Toward

Effective Risk Regulation, Harvard University Press,

Cambridge, MA. (1993) --- 25 n. 14

Breyer, Stephen, Regulation and its Reform, Harvard

Unviversity Press, Cambridge, MA (1982) - 14.n. 11, 27 n. 15

Breyer, Stephen, The Legislative Veto After Chada,

72 Georgetown L. J. 785 (1984) 24, 27 n. 15

Davis, Kenneth Culp, A New Approach to Delegation,

36 U. Chi. L. Rev. 712 (1969) 20, 25

Madison, James, Federalist No. 5] ---------------------------- 17

Scalia, Antonin, Judicial Deference to Administrative

Interpretations of Law, 1989 Duke L. J. 511 12, 21

Schoenbrod, David, Power Without Responsibility-

How Congress Abuses the People Through Delegation

Yale University Press, New Haven, CT (1993) ------ 29-30

In the Supreme Court of the United States

No. 99-1257

Caro M. BROWNER, ADMINISTRATOR OF

THE ENVIRONMENTAL PROTECTION AGENCY,

ET AL., PETITIONERS,

Vv

AMERICAN TRUCKING ASSOCIATIONS, INC., ET AL. RESPONDENTS.

On Writ or CERTIORARI

To THE Unrrep States Court OF APPEALS

For THE District oF Cotumsia Circuit

BRIEF AMICUS CURIAE

PEOPLE FOR THE USA and

THE ALLIANCE FOR AMERICA

STATEMENT OF INTEREST

People for the USA and The Alliance for America

(“ the Parties “)! are non-profit organizations with the stated

goals of promoting sustainable resource development, multiple

use of public lands, and strong property rights consistent with

the U.S. Constitution. Both organizations are characterized by

individual membership and also act as national umbrellas for

other groups throughout the country that share these goals.

Membership under the umbrella of the two groups runs to more

Executive and agency actions potentially representing

significant conflict with the non-delegation ideal directly affect

the Parties’ efforts at achieving their stated goals, to the

detriment of their memberships and often to the detriment of

entire rural communities in which many members live or

recreate. The Parties appear before the Court to encourage the

strong, but narrow, measured step which it urges in this matter.

1 No counsel for any other party authored this brief in whole or in part, and no

persons or entities other than the Amici and their counsel made any monetary

contribution to the preparation or submission of this brief. This brief is being

filed with the written consent of the parties, with corresponding documenta-

2

Parties appreciate that Congress, both generally, and to

clarify the intent of the statutory authority at issue in the present

case, must strike a delicate balance between potential health

effects and burdens to other aspects of the public welfare

measured in different terms. The Parties will be affected by the

outcome of this case in controversy, which will establish not

the ozone and particulate matter standards themselves, but the

entity to appropriately establish such standards. The larger

meaning for the Parties is that the Court, in accepting the narrow

result sought by respondents, will reaffirm the vitality of a

relevant doctrine which has been unduly relegated to the judicial

backbench. The appropriate outcome urged by the Parties is a

measured step in affirming the constitutional ideal of separate,

identified powers for each of three distinct branches of

government.

QUESTION PRESENTED

The Parties address only Question 1:

Whether Section 109 of the Clean Air Act (CAA), 42

U.S.C. 7409, as interpreted by the Environmental Protection

Agency (EPA) in setting revised National Ambient Air Quality

Standards (NAAQS) for ozone and particulate matter, effects

an unconstitutional delegation of legislative power.

The Parties believe an affirmative answer to this question,

as they urge, renders moot the subsequent two questions

accepted by the Court on certiorari from the United States Court

of Appeals for the District of Columbia Circuit in the case of

American Trucking Associations, Inc., et al. v. U.S.E.PA. et al.,

175 F.3d 1027 (“Trucking”).

SUMMARY of ARGUMENT - The EPA has usurped

legislative power in violation of the non-delegation doctrine

which must be cured by narrow statutory invalidation

The argument in this case is not one of statutory, but

constitutional, interpretation. The Parties argue that because

EPA is attempting to conform its interpretation of the statute to

the Constitution, there is no protection for, or deference to,

agency expertise as to its authority or limitations pursuant to

3

the Constitution. The Parties urge that this Court see beyond

the implicit nostrums of petitioners’ camp against judge-made

law and recognize that the matter at issue is indeed which branch

of government is the appropriate body to establish standards in

pursuit of which an agency sets rules. Under the particular

circumstances where discretionary bounds are inadequate to

address the factual setting of the rulemaking at issue, the

standards or clear bounds of discretion should be set by

Congress. It is EPA inappropriately usurping the lawmaking

function here; and the solution is not for the judiciary to make

the law, but for the Court to remand this function to Congress,

in the specific instance at hand, through narrow statutory

invalidation.

I. Standard Setting is a “high” Delegation

Indeed, in disavowing any connection between the

NAAQS and its implementation? , the Parties believe EPA sets

the standard apart as preeminently executive-lawmaking (quasi-

J See Trucking, 175 F.3d at 1044: “According to the EPA, the NAAQS them-

selves impose no regulations upon small entities”. This theory was advanced

by EPA to defend its certification that its revised NAAQS will “not have a sig-

nificant economic impact on small entities within the meaning of the RFA.”

PM Final Rule, 62 Fed. Reg. at 38,702/2; Ozone Final Rule, 62 Fed. Reg. at

38,887/2-3. While relying on precedent of direct versus indirect effects, the

Parties think this a semantic argument in the immediate context. The appeals

panel itself found no difficulty in imagining the burdens which NAAQS might

pose: “Here, EPA's freedom of movement between the poles is equally uncon-

Strained, but the poles are even farther apart-the maximum stringency would

send industry not just to the brink of ruin but hurtling over it...”, Trucking, 175

F.3d at 1037. EPA’s contention that the states will do the dirty work of actual

implementation demonstrates how this framework frustrates the purpose of

assigning an appropriate accountable entity. State agencies frequently defend

themselves with “EPA made me do it” when implementing the unpopular re-

sults of even the existing standard. Further, EPA plays the wolf in sheep's cloth-

ing which may be stripped away by 42 U.S.C. 7410 (c):

“(1) The Administrator shal] promulgate a Federal implementation plan

at any time within 2 years after the Administrator -(A) finds that a State

has failed to make a required submission or finds that the plan or plan

revision submitted by the State does not satisfy the minimum criteria ¢s-

tablished under subsection (k)(1)(A) of this section, or (B) disapproves a

State implementation plan submission in whole or in part.”, Id.

4

legislating), not law enforcing. The Parties argue that this is

axiomatic and heightens the very likelihood of an

unconstitutional delegation, i.e., the delegation of setting the

NAAQS is a more extensive one than the delegation of NAAQS

implementation. Applying a similar rationale to a pattern of

enforcement against individual parties might withstand a non-

delegation test that the standards presently challenged do not,

e.g., EPA focusing enforcement resources not on the entire range

of values representing a violation of some standard, but on that

range which it deems represent the preponderance of the

regulated risk.

EPA having thus bifurcated or distinguished its actions

under the statute at issue, the Parties disagree with

Massachusetts and New Jersey (MA & NJ) that this is not a

case “in which the entity to whom authority has been assigned

exercises nothing but the lawmaking function”, MA & NJ Brief,

p. 35>. At issue is whether this delegated lawmaking function

of setting standards is effectively bounded and thus

constitutionally acceptable quasi-legislating.

Petitioners and their Amici argue that, since the non-

delegation line established by the Court in A.L.A. Schechter

Poultry Corp. v. U.S. , 295 U.S. 495 (1935), this Court and

others have rightly approved increasingly broad delegations.

That is, however, a different measure than the one the Parties

describe as distinguishing the “height” of the particular

delegation of standard setting.

2 cont. Nonetheless, this question is not before this Court; but the Parties main-

tain that if EPA will live by the sword, it must die by it as the well. The setting

of standards with no relationship to their enforcement is precipitously close to

jumping the bounds of executive lawmaking and usurping the true lawmaking

power.

J jt is unavoidable, if redundant, to point out that MA & NJ support this argu-

ment by clain:ing “the [EPA] Administrator is charged not only with setting

the NAAQS but also with ensuring their implementation by the states”. The

Parties do not think such an argument would be so casually advanced if the

Regulatory Flexibility Act (RFA), 5 U.S.C. § 601, issues were still on the ju-

dicial table. How can one logically find the powers executed by EPA conjoined

to defend their wielding but separated to defend their effect?

5

By broader delegation, the petitioners’ camp appears to

mean the drawing of greater numbers of specific personal and

economic activities under the direct governance of

administrative agencies rather than the legislature, and the

allowance of delegations that have been general rather than

specific in terms of grants of authority and bounds to constrain

them, see, e.g., EPA Brief, p. 21 (“Congress simply cannot do

its job absent an ability to delegate power under broad general

directives.” Jd. (quoting Mistretta v. U.S., 488 U.S. 361, 372

(1989)) — in Mistretta this Court approved a broad delegation

to set mandatory uniform sentencing guidelines for the entire

country, but the standards were the sentences already set by

Congress as codified in title 18 U.S.C.; and the discretion was

not vague, seven relatively concrete factors were enumerated,

see 28 U.S.C. 994 (c)). The Parties urge, for the sake of clarity

in discussion and jurisprudence, that this Court should

distinguish even these two forms of expansion by characterizing

the breadth of activities or actors affected as defining the “width”

of the delegation, and the extent of abstract versus concrete

bounds of discretion as defining the “vagary” of the delegation.

The question of whether Section 109 of the Clean Air Act

as interpreted by EPA effects an unconstitutional delegation of

legislative power is one of degree measured in these several

dimensions. The Parties argue that the delegation here reviewed

is ‘broad’, i.e., it could “send industry [and the Parties would

add industrial society] not just to the brink of ruin but hurtling

over it”, Trucking 175 F.3d at 1037; is ‘high’, i.e., it is an

important choice of a social policy standard unrelated to the

enforcement of that standard implicating, in EPA’s own view,

the ethical dilemma of effectively deciding the acceptable

number of “early deaths...[and] hospital admissions”, EPA Brief,

p. 2; and is ‘vague’ , the boundaries of discretion are established

by the abstract concept of “requisite to protect the public health”

,“allowing an adequate margin of safety”, 42 U.S.C. § 7409

(b)(1).

6

II. The Court can rule narrowly, thus with measured effect.

Petitioner’s camp focuses arguments on the notion that

the Act itself need not supply “determinate criterion” (see Brief

of American Lung Association, p. 12-13, “Chevron...and other

precedent of this Court recogniz[e] that Congress may

legitimately write ambiguous [i.e., nondeterminate] statutes” .)

This defense is merely dispositive of the question of whether

Section 109 is facially invalid. Its line of reasoning simply

defines why many delegations that may seem facially excessive

may nonetheless stand without the specific circumstances of a

case or controversy narrowing the question. As articulated in

Webster v. Reproductive Health Services, 492 U.S. 490 (1989),

“[{a] facial challenge to a legislative Act is, of course, the most

difficult challenge to mount successfully, since the challenger

must establish that no set of circumstances exists under which

the Act would be valid.” Jd. at 524 (Justice O’Connor,

concurring) (quoting U.S. v. Salerno, 481 U.S. 739, 745 (1987)).

The comfort that petitioners find in a general refusal by

the courts to lay waste to the practice of delegating some

function or authority to the Executive simply does not extend

to protect them from review of a particular delegation in practice.

“The fact that the [relevant statute] might operate

unconstitutionally under some conceivable set of circumstances

is insufficient to render it wholly invalid”, /bid; and conversely

the fact that the statute might operate constitutionally under

some “conceivable set of circumstances”, even if that were a

majority of circumstances, does-not universally insulate the

Statute from scrutiny.

To say, then, that under the precise circumstances here

reviewed and relative to this particular rulemaking Section 109

is unconstitutional is not to say that it is now wholly or prima

facie unconstitutional. It is not to call into question other actions

previously taken under Section 109 involving different facts.

Indeed, Justice O’Connor went quickly to the heart of the

constitutional matter here at issue in Webster by invoking the

doctrine of judicial restraint which implicitly supports Salerno,

i.e., that “[nJeither will [the Court] generally ‘formulate a rule

7

of constitutional law broader than is required by the precise

facts to which it is to be applied’” Webster, 492 U.S. at 526

(quoting Ashwander v. TVA, 297 U.S. 288, 347)*. The Court

has before it precise facts which the Parties argue demonstrate

that “Section 109 of the Clean Air Act (CAA), 42 momen

in setting revised National Ambient Air Quality Standards

(NAAQS) for ozone and particulate matter, effects an

unconstitutional delegation of legislative power’, first question

presented on certiorari in the present matter (emphasis added).

The very specificity of the question accepted manifests

the cited rule of judicial restraint. No parties ask the court to

leave these narrow circumstances and thus the Parties think the

remedy to the question presented will be limited in effect to the

rule here at issue. This Court recognizes that a narrow holding

is not synonymous with a timid one, and the Parties urge that

this Court take a clear but measured step to reaffirm the vital

doctrine of non-delegation which has seldom broken the surface

of jurisprudence since Schechter, but has remained just beneath.

4 This rule is arguably the common ground between the concurrences of Jus-

tice O’Connor and Justice Scalia, see Webster, 492 U.S. at 533 oy

concurring in and concurring in judgment), “what is involved [is]...

principle that we will not ‘formulate a rule of constitutional law broader than is

required by the precise facts to which it is to be applied’ “. The point of agree-

ment devolves thence to disagreement whether there might be “good reason to

depart from that “sound general principle”, Ibid. The plurality, as history tells,

strikes a course between the shoals of this argument. In any event, the Parties

do not argue there is, nor do they think that this Court will find, “good reason

to depart from the “sound general principle” here. The case rises and falls on

the precise facts at issue and the ruling should apply to the determinations here

in controversy, not to others made under Section 109, unless these decisions

shall prove in future proceedings to mirror those in the present matter.

5 It is axiomatic that the analogous meaning of the ruling indeed may bring

about effects in other realms, but only under analogous circumstances. Un-

like EPA, which appears to assert that the standards it sets somehow have re-

lation only to the benefits they will confer and no relation to the burdens they

will ultimately impose, the Parties believe that the meaning of this case as

mean that the direct effect of the case will not be narrow, and such indirect or

iterative effects similarly precise. See generally, LX. A narrow and firm deci-

sion will have limited, measured and necessary effects., infra, p. 26-30.

III. The Court should continue to recognize that the

non-delegation doctrine acts against Congress.

We concur with Amicus Environmental Defense Fund et

al (EDF) that the Court has “continued to view this [non-

delegation] doctrine as a constraint on congressional — not

administrative — action.” There is, however, no precedent cited

by EDF, nor is it mutually exclusive of the possibility, to suggest

that execution of the statute may not eventually expose a

contextual violation which hazards some precise portion of the

Statute in application. Indeed, the vital constitutional doctrine

which begs reaffirmation herein, as with many others, would

have little meaning whatsoever if statutes may not be examined

based on subsequent actions of the Executive because there

exist some other “conceivable set of circumstances” which are

constitutional.© It does not immunize the Executive for all

applications of congressional authority.

EPA’s findings that ozone (definitely) and particulate

matter (likely) are non-threshold pollutants were unanticipated

by the discretionary limits set by the statute. The fact that the

© The claim in Webster regarding the constitutionality of a Missouri state stat-

ute, 188.205, which precluded the use of public funds to encourage or counsel

a woman to have a nontherapeutic abortion was dismissed with prejudice fol-

lowing the state interpreting the statute as not aimed at the primary doctor

patient relationship, but s‘mply directed the state’s fiscal officer not to allo-

cate public funds for abortion counseling, see Webster, 492 U.S. at 512-513,

part C. Surely, if a future agent of the state enforcing 188.205 should “change”

the aim of the statute, ¢.g., to prohibit state payments for any sort of care ren-

dered by a doctor if they were shown to occasionally engage in abortion coun-

seling with any patient, the controversy would be renewed, even though the

initial claim was dismissed with prejudice. Justice O’ Connor noted in Webster

that the final arbiter for interpretation would be the Supreme Court of Mis-

souri, Webster, 492 U.S. at 524; but simply having affirmed that one interpre-

tation is within fair executive reading of the statute does not necessarily pre-

clude executive “rereadings”. It seems a surety that the claim of statutory in-

validity would no doubt have returned to the federal courts based upon the

hypothetical “change” in executive interpretation of the statute posed, i.e., the

validity of legislative actior stood constantly at risk over executive interpreta-

tion

9

statute provides for additional guidance from the Clean Air

Scientific Advisory Committee (CASAC) in reality merely

means that EPA may receive a policy endorsement for its defense

of the standard it chose, but does not speak to whether the

standard is within bounded discretion. Put another set of

parentheses around a parenthetical clause, and you still have a

parenthetical clause.

Looking to the history of the statute, EDF proposes that

one may glean limit to EPA’s discretion under Congress’ abstract

standard by reference to Senate Report No. 91-1196 at 10 (1970).

EDF synthesizes a portion of the report to mean that “the purpose

of the NAAQS is to protect particularly sensitive populations,

not particularly sensitive individuals”, EDF Brief p.13. There

is some basis for such an interpretation, but EDF offers no

evidence that EPA set the standard challenged herein pursuant

to such guidance, or that it plans to apply similar logic to

distinguishing sensitive populations and individuals in the

future.

To all appearances, the precise facts of this case indicate

a circumstantial breach of the non-delegation doctrine. While

Congress may surely make facially unconstitutional delegations

of legislative power, EDF inaccurately argues that, though the

doctrine is directed against Congress, it may not be called to

effect by actions of the Executive. The Parties analogize a prima

facie statutory violation of the non-delegation doctrine as the

legislative river flooding its constitutional banks, to paraphrase

Justice Cardozo in Panama Refining Co. v. Ryan, 293 U.S. 388,

440 (1935). It thus follows that if the river is not flooding, but

is running high (as the Parties contend when viewing the nature

of the delegation implicit in standard setting responsibilities) it

is much easier for the agency to reach into the river and take

legislative water from it. The Parties think the D.C. Circuit

mistakes the appropriate remedy to be some form of water

treatment, rather than simply telling the agency to put the water

back.

Heze again, the Parties concur with Amicus EDF that an

affirmative answer to the first question presented begs a remand

to Congress, not the agency. See EDF brief p. 4 (“...the

10

nondelegation doctrine simply does not have a ‘weak’ version

that is served by setting aside regulations as well as a “strong”

version that compels declaring statutes unconstitutional.”). The

Ragties believe the confusion arises because the holding of the

court below was both narrow and shallow. The Parties urge

this Court to hold narrowly with the D.C. Circuit but to discard

the hesitancy of its approach. Thus the Parties proceed to the

discussion of how the appeals panel actually answered the first

question presented.

IV. The Appeals Court’s tentative answer to Question One

The Parties argue that much of the confusion over properly

invoking the non-delegation doctrine arises from an answer to

question one incompatible with the precise facts of this case.

The D.C. Circuit’s ruling in the present matter effectively

answers the question of whether EPA’s interpretation of Section

109 effects an unconstitutional delegation of legislative power,

neither “yes” nor “no”, but rather “maybe”.

Here we distinguish the intelligible from the rational. If

an “intelligible principle” had been found in EPA’s interpretation

of the statute by the appellate court, and EPA’s decision,

regardless of how rationally defensible, fell outside the bounds

of that principle, a remand to the Agency would be proper. EPA

has rejected or forsworn any obviously applicable intelligible

principles corollary to the boundaries implied by “requisite to

protect the public health”, “allowing an adequate margin of

safety”, 42 U.S.C. 4709 (b)(1), which would properly bound

its decisionmaking on non-threshold pollutants, e.g., zero-risk’ ,

or cost-benefit? .

Additionally, EPA refuses to adopt the boundaries it

proposes here by way of level of certainty and seriousness of

7 While the appeals panel noted that no party before it seemed to propose the

adoption of zero-risk, it held this out as a possibility, see Trucking, 175 F. 3d

1038. Both the appeals court, explicitly, and EPA, implicitly, must understand

the quixotic quality of applying a zero standard to emissions which are a ubiq-

uitous byproduct of so many aspects of modern society and, even more chal-

lenging, a product of nature as well. Nonetheless, it is conceivable that EPA

could have adopted a ‘no human contribution’ standard. There is some hint

that their standard approaches this level, but EPA declined to adopt .070 PPM

—

1]

effects. It simply advances them as rational defenses of the

standard but ro auton elements. As stated above, EPA

refuses another option, to state that the division it makes here

articulates between sensitive individuals and sensitive

populations, thus giving some measure of legislative history

support to its discretion. It defends these refusals as necessary

to guard the prerogative of future administrators, but that does

not explain why the current administrator will not find any

determinate criteria that are binding even on her. The Parties

cont. on the fact that analogous, naturally occurring levels were occa-

sionally found in some places. see Ozone Final Rule, 62 Fed. Reg. a 38,868/3

“{.07 standard would be] closer to peak background levels that infrequently oc-

cur in some areas due to nonanthropogenic sources of O3 precursors, a thus

ikely to be inappropriately targeted in some areas on sources.”

The Portes do ext favor such a standard, but would find consistent reli

ance upon it at least a more intelligible, if impractical, understanding that there

are discretionary confines for establishing standards which are requisite >

protect the public health”, “allowing an adequate margin of safety”, 42 U.S.C.

470%(b)(2). Were the Court to remand with such a principle, the EPA rule thus

formulated would not only run directly at odds with continuing an industrial

society, but arguably with continuing much more than a hunter-gatherer exist-

ence for the nation’s populous. Indeed, the appeals court effectively admits

that anything hunted or gathered would have to be eaten raw, as fire itself must

likely be prohibited in such a scenario (Trucking, 175 F. 3d at 1038, fn. 4).

Nonetheless, if this is what the CAA demands, rather than jumping the bounds

of discretion to avoid a politically unpopular result, EPA should call it as it is

if will change the act.

-—~ oo Parties think at rt s implications of a zero-standard or zero-

human-impact standard would make short work of EPA's contention that the

Regulatory Flexibility Act, 5 U.S.C. § 601 and amendments to it under the Small

Business Regulatory Enforcement Fairness Act, Pub. L. No. 104-121, tit. I,

110 Stat. 857-74, are inapplicable to the NAAQS. No imaginable implemen-

tation of such a standard could take place without destructive upheaval among

small business, big business, and the citizenry in general..

mand the statute to the agency noting the principle[s] abandoned during the sus-

pect agency action which are to guide its decision on reconsideration.

12

submit that constitutional examination of the question at issue

quickly reveals that the present will of Congress is far more

compelling than the imaginary predilections of a future

executive or the future waffling of an extant executive agent.

Thus the answer to the first question, not contradicted by

the D.C. Circuit, is in the affirmative; and, without a finding of

principle to bound the discretion which would govern a remand

to the Agency, the proper course is measured statutory

invalidation, i.e., this Court should rule narrowly which in no

way means a timid ruling.

Shifting the analysis from a purely constitutional one to

policy grounds, the policy consequences of a remand for an

agency to find an intelligible principle reveals a perverse

incentive. Agencies would be invited to wink at the non-

delegation doctrine in setting standards and only truly engage

the search for intelligible principle if challenged.

Interestingly, deference to agency statutory interpretations

arises out of the belief in agency “expertise”, the agency's

“intense familiarity with the history and purposes of the

legislation at issue” and agency’s “practical knowledge of what

will best effectuate those purposes.” Judicial Deference to

Administrative Interpretations of Law, Scalia, Antonin, 1989

Duke Law Journal 511, 514 (1989). Where the agencies have

articulated and interpreted “intelligible principles”, not ignored

or never found them, a certain latitude implied by “deference”

has ensued to support those actions. Where EPA admits that

there is no intelligible principle, the Parties do not see why that

decision should receive any less deference.?

The EPA Administrator has gone to lengths in attempting

to justify the policy decision of where to set the standard, but

her arguments still reduce to: a lower standard would cause

less health effects, a higher standard would cause more health

effects (see Trucking, 175 F.3d at 1035). More damning, the

7 Note, this casts the case in direct opposition to Touby v. U.S., 500 U.S. 160

(1991), in which the petitioners conceded there was an “intelligible principle”

but asked for a higher standard. The statement of “intelligible principle” in

Touby is not exceedingly dissimilar from that facially at operation in the present

matter, but the contention of the Parties is that the principle has evaporated in

the context of its inconvenience of applicability to the present circumstances.

13

standard chosen is essentially said to be correct because it is

the one chosen by the Administrator (see EPA brief, p. 29, “...no

generalized paradigm...can substitute for the Administrator’s

careful and reasoned assessment” (quoting 62 Fed. Reg. at

38688)). The Parties beg to differ; “the administrator's ...

reasoned assessment” must relate to an intelligible principle.

EPA as much as admits that this is unregulated delegation.

Nonetheless, it is all disguised in the garb of rulemaking,

and thus EPA claims the competence to decide the question of

whether a rational effort to set a rule outside the bounds of

discretion, or with ill-defined discretion to which the

administrator will not even reliably adhere in the future, is a

violation of the non-delegation doctrine. This implies that this

Court ought not consider the constitutional matter de novo, or

perhaps not even consider this a constitutional matter.

It is a rather incredible contention, if not unexpected in

this day of burgeoning administrative government, that

essentially seeks Chevron deference for executive constitutional

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

(1984). Where shall the competency of this Court, or any other

court, lie if not to set the constitutional line? Since this gambit

raises the question of the standard of review to apply here the

Parties proceed to address it.

V. Standard of Review

American Lung Association (ALA) argues that

“because the Clean Air Act plainly satisfies the non-delega-

tion doctrine, the D.C. Circuit’s constitutional inquiry should

have stopped there — there was no occasion to proceed to a

constitutionally based examination of EPA’s interpretation,

much less a constitutionally based narrowing of that interpre-

tation.” ALA Brief, p. 12-13. This is, at minimum, an honest

admission of the nature of the present case. It is a constitu-

tional question.

The American Lung Association offers at length its belief

in the rationality of the standard chosen. This avoids addressing

the question presented. The question is not whether EPA chose

the right standard; rather, it is whether they could have chosen

14

the right standard under the particular circumstances. This is

not a review of the agency’s action for arbitrary nature; indeed,

the Parties concede that the procedural history or this rulemaking

could insulate EPA from just such a challenge, even in the face

of stronger arguments favoring a different standard. This is

how the constitutional question is reached in the first place. !°

EPA’s rationale, rather than insulating it from

constitutional challenge, invites it. If EPA’s actions in the

rulemaking were irrational, the constitutional question simply

would not be reached. The logic does not, however, follow

that simply because EPA may have acted rationally, it acted

within constitutional bounds.'! Thus the Parties agree with

ALA that a constitutional question is at issue, but cannot agree

that it was improperly reached.

It is a caricature of the founders’ anticipated tension

between the branches to suggest that executive agents should

seek deference to their interpretation of a constitutional question,

but the advantage of such possible deference is too much for

EPA to forego without a vain attempt to shield itself under an

Administrative Procedures Act (APA)-style review umbrella.

10 This distinguishes the present case from Industrial Union Dept. v. Ameri-

can Petrol. Inst., 448 U.S. 607 (1980) (“Benzene”). While this Court did not

choose to reach then-Justice Rehnquist's quintessential concurrence on non-

delegation, the Parties do no see Benzene as even remotely rejecting it since

the question there could be readily resolved under a remand for unsupported,

ie., arbitrary, decision. The constitutional question simply was not reached,

——) — he ree eloquence notwithstanding.

Common sense, i.¢., everyday rationality, is a rule long recognized as per-

tnent to the application of the non-delegation doctrine. “In determining on

[Congress] may do in seeking assistance from another branch, the extent and

character of that assistance must be fixed according to common sense...” J. W.

Hampton, Jr, & Co. v. U. S., 276 U.S. 394, 406 (1928). “If Congress shall lay

down by legislative act an intelligible principle to which the person or body is

directed to conform, such legislative action is not a forbidden delegation of

legislative power”, Id. at 409.

This makes critical the question of what represents common sense for the

purposes of this analysis. The Parties offer Justice Breyer's expressed belief

that “...some risk is inevitable in any society and cannot be eliminated at rea-

sonable cost. Thus, safety statutes must seek to eliminate unreasonable risk,

regardless of their language”, Breyer, Stephen, Regulation and its Reform,

Harvard University Press, Cambridge, MA, 1982, p. 103 (emphasis added).

15

“In the court’s view, the Constitution requires that

EPA supply a single principle that would enable the

court to conclude that EPA’s NAAQS are set at what the

court deems exactly the “right” level... That approach,

however, is inconsistent with the court’s limited role in

reviewing NAAQS. The CAA makes clear that EPA’s

actions in setting NAAQS are subject to review under

the arbitrary or capricious standards of judicial review.

See 42 U.S.C. § 7607(d)(9)”, EPA Brief, p.27, 37. (see

also 5 U.S.C. § 706 (2) - APA review procedures

identical to 42 U.S.C. § 7607 (d)(9))

The Parties believe that EPA has not taken great effort to

obtain the perspective of the appeals court in order to announce

what was in that court’s view. Otherwise they would know that

their proposition fails, because the appeals court simply was

not reviewing the NAAQS, but whether the delegation of its

establishment to EPA was properly bounded. This may be

enlightened by EPA's statutory interpretations but is a

constitutional question. Nowhere does the court demand of

EPA the “right” level or suggest it wishes to substitute its

judgment as to what the “right” level might be. It does not seek

11 COnt.such subtleties may seem to make further light of Justice Roberts’

statement that “the judicial branch of the government has only one duty; to lay

the article of the Constitution which is invoked beside the statute which is chal-

lenged and to decide whether the latter squares with the former.”, U.S. v. Butler,

297 U.S. 1, 62 (1936). Certainly, Justice Roberts was not advocating absurd

outcomes when stating this self-evident maxim. It is axiomatic that if there are

several choices within well bounded discretion attending a delegation of legis-

lative power, a sure defense for the elimination of a given choice is an absurd

outcome. It must, however, be demonstrable that the alternative choice(s) are

legislatively permissible. Thus to avoid ‘zero-risk’, an absurd outcome as ad-

dressed both by Justice Breyer in Regulation and its Reform, cited, infra, and in

the Parties’ arguments at p. 10, n. 7, the only possible conclusion is that EPA

implicitly considered other factors besides health effects to inform its health ef-

fect standard setting, and the only intelligible principle for such an exercise is

cost-benefit analysis, see the Parties arguments at p. 11, n.8. If cost-benefit

analysis is not available, and the absurd result may not be avoided within dis-

cretionary bounds, it is Congress which must reconcile the absurdity, not ‘his

Court or the Executive. Common sense is a proper tool to alert this Court when

a potential absurdity may need to be resolved, but not a tol for determining

where the power to resolve the absurdity constitutionally resides.

16

to determine whether the standard is arbitrary, but looks to see

whether such a question may be answered, e.g.,

“..Only if we could say that there is an absence of

standards for the guidance of the Administrator’s

action, so that it would be impossible in a proper

proceeding to ascertain whether the will of congress has

been obeyed, would we be justified in overriding its

[Congress’s} choice of means for effecting its declared

purpose...” Yakus v. U.S., 321 U.S. 414, 425-426 (1944)

Thus the standard chosen by the D.C. Circuit is effectively

that one which is viewed as having broken the dam of

Schechter’s application. Therein it can be seen that Schechter

was not discredited, but respected, by what are in effect its

progeny.

If that respect has been loose or less than charitable as

then-Justice Rehnquist suggested in his Benzene concurrence,

see Industrial Union Dept. v. American Petrol. Inst., 488 U.S.

607, 686 (1980), such animus never extended to vacating

Schechter’s non-delegation maxim which is universally

understood to attend the constitutional separation of powers.

With Schechter squarely invoked, and its pedigree questioned,

the Parties think some words must be said on its behalf.

VI. The Vitality of Non-Delegation

History suggests that Schechter is more damned by the

nature of the case in controversy than by the jurisprudence of

the decision. Surely, the constitutional doctrine of states rights

was in public disrepute and, to an extent, the judicial doghouse

for more than a century as the happenstance of having been

invoked in Dred Scott v. Sanford, 60 U.S. 393 (1857). Yet the

doctrine had nothing whatsoever to do with the disgraced and

archaic notion of treating other people as property. Surely, but

the least bit of substantive due process on Scott’s behalf would

have yielded a different result and thus struck the appropriate

balance between federal and state powers. While history tells

a different story in that case, it is most assuredly misplaced ire

to condemn as inappreciative of civil rights the very doctrine

17

that the founders conceived of as analogous to the separation

of powers and operating with it to insure those rights:

“In the compound republic of America, the power

surrendered by the people is first divided between two

distinct governments [state and federal] , and then the

portion allotted to each subdivided among distinct and

separate departments. Hence a double security arises to

the rights of the people. The different governments will

control each other, at the same time that each will be

controlled by itself.”, Madison, James Federalist No. 51

Schechter, by comparison, has a lesser burden to carry.

It’s social offense was as a judicial roadblock to the New Deal.

It is often taught that Schechter is the progeny of some

intractable justices who would not let the nation take the strong

medicine that President Roosevelt prescribed. As with Dred

Scott, the Parties think the jurisprudence of Schechter falscly

condemned for the linchpin character of its substance and

timing. Few viewed it as worthy of condemnation when Chief

Justice Taft had announced the “intelligible principle”

requirement in 1928, see J. W. Hampton, Jr., & Co. v. U.S., 276

U.S. 394, 409 (1928); but, he did so in approving a reasonably

well defined, if presently viewed as economically quaint,

delegation to customs officers to adjust tariffs according to the

relative costs of production in the country of origin.

When Schechter came before the Court, even Justice

Cardozo, who was the lone dissenter months earlier in the non-

delegation invalidation of FDR's “hot oil” Executive Order

issued pursuant to the National Industrial Recovery Act of June

16, 1933, 48 Stat. 195, saw “delegation running riot” in the

“Live Poultry Code”, Schechter, 295 U.S. at 553 (J. Cardozo,

concurring). While the wage and labor provisions of the code

have ultimately prevailed in other forms, the Parties do not

anticipate any others to inveigh against invalidating the “straight

killing” requirement, i.e., that those purchasing poultry had to

take the run of the coop. In other words, you couldn’t pick the

chickens you wanted to buy, nor could A.L.A. Schechter Poultry

Co. sell you the chickens of your choice. If this is a requisite

tenet of “fair competition” it was obviously a virtually

unbounded concept. Justice Cardozo described the expanse of

the delegation as follows:

“...a code is not to be restricted to the elimination

of business practices that would be characterized by

general acceptation as oppressive or unfair. It is to

include whatever ordinances may be desirable or

helpful for the well being or prosperity of the industry

affected...If that conception shall prevail, anything that

Congress may do within the limits of the commerce

clause for the betterment of business may be done by

the President upon the recommendation of a trade

association by calling it a code.” Jbid

Amicus EDF hazards that Schechter is irrelevant since

the regulations were effectively promulgated by private parties,

i.e., trade associations (see EDF Brief, p. 22). While the

delegation to private individuals can be said to create conflict,

members of the industry may also claim expertise. Few

administrative agencies are conflict-free in terms of

constituencies and factions they must serve, thus they are also

attended by both conflict and expertise. Noble motives on the

part of government actors were not the suspicion of the framers,

thus the separation of powers to begin with. The relevant

question in Schechter, as here, is not to whom the delegation is

made, but whether an intelligible principle capable of definition

bounds the delegation. In any event, the delegation in Schechter

was effectively to the President who had to approve any

interpretation.

While one can make light of the chicken killing

requirements, the wage and hours provisions of the codes at

issue remained a central contention within jurisprudence from

the New Deal to the Great Society. In Schechter, these

provisions were held inappropriate both on the grounds of

“attempted delegation of legislative power and the attempted

regulation of intrastate transactions which affect interstate

commerce only indirectly...”, Jd. at 551'*. Notably, when a

federally chartered minimum wage was first found constitutional

by this Court, see U.S. v. Darby, 312 U.S. 100 (1941), and Opp

Cotton Mills v. Administrator of W. and H.D., 312 U.S. 126

19

(1941), it applied only to businesses transacting across state

lines, and was set by Congress at 25 cents per hour with a

Gelegation allowing the Administrator of the Wage and Hour

Division to increase the wage where merited, but this

discretionary increase could not provide a wage in excess of 40

cents per hour (see Fair Labor Standards Act of 1938, 52 Stat.

1060). Thus, the Parties would describe this as a well bounded,

i.e. less vague, delegation, albeit wide in the sense that it applied

across the interstate economy of the entire country (see also

Mistretta v. U.S., 488 U.S. 361, 368 (1989), approving

delegation to United States Sentencing Commission of the

establishment of determinate sentencing guidelines where: “The

maximum of the range ordinarily may not exceed the minimum

by more than the greater of 25% or six months, and each

sentence is to be within the limit provided by existing law.”

Id.). Of late, the Congress simply sets the minimum wage by

statute. Rather than a repudiation of Schechter’s non-delegation

doctrine, this is a virtual endorsement.

Schechter remained similarly inviolate as a matter of the

historically recognized ‘switch in time, that saved nine’,

referring primarily to a pair of watershed of rulings which cast

the Court in a more accommodating light relative to New Deal

undertakings. Neither of the rulings considered the pivot of

the ‘switch in time’ implicated any change in the Court’s view

on non-delegation. West Coast Hotel v. Parrish, 300 U.S. 379

(1937), approved a minimum wage statute of the State of

Washington and is considered to have rent the cloth of

substantive due process using as a shears the police powers of

12 While this theory of the commerce clause, Art. I, Sec. 8, U.S. Constitution,

as a significant bar to federal action has arguably fallen a bit by the wayside

since Schechter, it is the logical analog of the quite healthy judicial rule of

“indirect effects” which insulated EPA’s standard setting decision in the present

matter from examination for the burdens of its effect under the Regulatory

Flexibility Act, 5 U.S.C. § 601, and amendments to it under the Smal! Busi-

ness Regulatory Enforcement Fairness Act, Pub. L. No. 104-121, tit. II, 110

Stat. 857-74, see Trucking, 175 F.3d at 1043-1045. Perhaps foreshadowing

of commerce clause justification for sweeping federal mandates is receding as

that under its ambit diminishes in consequence of recent precedents, e.g., U.S.

v. Lopez , 514 U.S. 549 (1995).

20

the state — not the federal government. Congressional

delegations were not in issue. NLRB v. Jones & Laughlin Steel

Corp., 301 U.S. 1 (1937), is strictly a commerce clause case

(Art. I, Sec. 8, U.S. Constitution). While the action in

controversy was a delegated action, no party argued, and the

Court did not conceive, that dismissal of workers for labor

organizing activities was not within a well bounded discretion

described by “unfair labor practices”. The question was whether

circumstances fell under the ambit of federal jurisdiction. Thus

delegation is aly mentioned in passing with the indication that

it is Inapposite.

This is not to say that petitioner's camp does not fairly

bring examples of suspect delegations that have survived judicial

review. Kenneth Culp Davis does likewise in articulating what

he conceived of as the “failure of non-delegation”, see generally,

Davis, Kenneth Culp, A New Approach to Delegation, 36 U.

Chi. L. Rev. 712 (1969). Davis points to case studies of interstate

trucking regulation, cable television regulation, and natural gas

supplier regulation. Of these, two out of three have been

essentially deregulated by Congress, arguably in consequence

of the very failures he cites. Without proper control on

delegation, the country evidently faces a boom and bust

regulatory environment.

But, is a return to an effective non-delegation doctrine

somehow as wild a swing of the pendulum as petitioners intimate

as compared with the outcomes just described? The Parties do

not think the measured step they urge hazards a “return” to any

distinct legal sentiment, particularly some interpretation once

rendering resistance to the New Deal. The Parties believe that

the Court, whether the curreni Court or that of FDR's day, is to

invoke the “common sense” discussed, supra, in cognizance of

the force of its rulings and measure its steps so as to be seen as

such, if not widely and substantively digested, by the citizenry.

VII. Chevron Begs Schechter —The Need for Non-Delegation

. Justice Scalia has articulated why the idea of yielding

judicial deference to the executive on ambiguous statutory

interpretations is more sensible than it sounds on its face (see

oer Or — — ee,

21

Scalia, Antonin, Judicial Deference to Administrative

Interpretations of Law, cited, supra). The Parties argue that,

pursuant to Chevron, the regulatory ambit has increased to a

point where the executive and independent agencies feel

justified in dipping water from the legislative river, simply if

they feel it rationally defensible. Such actions may be the

providence of the most well-intentioned of executives, but the

drink they seek may be attained constitutionally by running for

legislative office. As Justice Scalia is also known for saying,

the Constitution gives the Congress the power to make laws,

not the power to make legislators.

The explicit requests here for Chevron deference to

executive constitutional interpretations (see EPA Brief, p. 8;

ALA Brief, p. 13; and Amicus New York’s Brief, p. 20) and

identical if implicit requests resulting from casting this matter

as limited to an APA substantive review of agency action for

arbitrary application of ambiguous statutory provisions (see EPA

Brief, p. 27, 37; and Amicus EDF's brief, p. 5) indicate that the

decision has created almost an artificial intelligence sort of

vortex in the administrative agencies. In the mold of the

idiomatic science fictional computer that is taught to think and

then takes over its master, reflecting a theme coursing through

literature from Shelley's Frankenstein to Clarke’s 200] A Space

Odyssey, the agencies, once handed Chevron, have responded

predictably to expand their influence over the other branches

and over the country as a whole as EPA seeks in the present

case. This does not make Chevron wrong, but demonstrates a

system of checks that is out of balance.

What is needed here is not a return to pre-New Deal

jurisprudence, but recognition that some more dormant theory

of jurisprudence remains vibrant. Schechter has indeed

slumbered, but is surely the needed linchpin to the checks and

balances of administrative execution of legislative grants of

authority. In fact, without such a reminder as this case is

positioned to offer, administrative agencies, and even some

courts are losing sight, in some important respects, of from

whence the power they wield has come, e.g., the Supreme Court

of North Carolina recently ruled in a separation of powers case,

22

Wallace v. Bone, 286 S.E. 2d 79 (1982), that an Environmental

Management Commission (EMC) which sets standards and

promulgates rules is an administrative body and thus has “no

relation to the function of the legislative branch of government”,

Id. at 88. The formalistic result in the case, finding it

inappropriate for legislators to serve on this EMC, is not

incredible; but the notion that standard setting and rulemaking,

a portion of the administrative powers of the EMC have “no

relation to the function of the legislative branch of government”

is certainly as hostile to the separation of powers as legislators

sitting on the EMC.

VIII. Separation of Powers Jurisprudence is,

by Nature and Design, Formailistic.

There simply can be little rationale for formalistic

attentions to the separation of powers in some arenas while not

in others. The line-item veto (see generally, Clinton v. New

York , 524 U.S. 417 (1998)) and the legislative veto (see

generally, INS v. Chada, 462 U.S. 919 (1983)) have been

vanquished through formalistic interpretations of this Court.

Legislative delegation must be subject to the same rigors in

order to uphold the values inherent in separation of powers.

Parties urge that the Court view the battle of New York in

a context of Congress presenting to the President a spending

bill which he may only veto in its entirety, however this bill

contains the following caveat: “The President shall spend the

allocated sums, or afford the contemplated tax relief only if he

deems it requisite to the public welfare” (borrowing from 42

U.S.C. § 4709 (b)(2), although requisite to “the national interest”

could surely substitute as it did in the discretionary condition

precedent to exercise of the line-item veto, see 2 U.S.C. §

691(a)9A)(iii) (invalidated in New York)).

One cannot ensure appropriate separation of powers by

closing off one avenue but leaving other areas for usurpation

available. There can be little doubt that Congress passed the

Line Item Veto Act, 2 U.S.C. § 691 (invalidated in New York),

to solve that nettlesome problem of government, trimming the

fat, that it was unable to accomplish itself. If this assistance of

23

the Executive were not available under the constitutional

separation of powers because it would involve legislating by

less than the constitutional algorithm of passage by both houses

and presentment, is it no less legislating because it appears in

the form of delegated executive action, rather than in a form

internal to the legislative process?

The Parties do not deny that the President has certain, if

limited, latitude in the expenditure of funds in operating his

own executive and independent agencies, which is most often

manifest in not actually spending allocated funds. It seems

likely, though, that if the President failed to transmit funds to

states or local entities to which funds had been allocated by

Congress or if the President attempted to collect a tax which

Congress had explicitly abated, and either action were defended

in legal proceedings on the pretext of the aforementioned

untethered delegation, that this Court should arrive at the same

result it did in New York.

Likewise, one of the most logical mechanisms for

regulating delegation, the legislative veto, is forsworn on the

same grounds as the line-item veto, that it is an incomplete or

improper making of law under Article I, Section 7 of the U.S.

Constitution. Congress may only effect a legislative veto by

legislating completely. A syllogistic exercise reveals that since

an Executive veto of a legislative bill must be overridden by a

two-thirds vote of both houses of Congress, and since a

Congressional veto by complete legislation is aimed at

Executive action; a Congressicnal override of agency action

will require supermajoritarian rather than simple majoritarian

support. In practice, the full legislative process is seldom applied

to such a task as the risk of validating the very action which has

raised Congress’ ire is, ironically, significant, see e.g., U.S. v.

Riverside Bayview Homes, 474 U.S. 121 (1985) — withdrawal

of congressional action against Executive interpretation later

held relevant to judicial upholding of disputed interpretation. !?

13 Decisions in the vein of Riverside implicitly insulate admimistrative conduct

whether Congress actually intended the requirement for a permit to fill “navi-

gable waters” to extend to land areas not subject to regular inundation when it

24

Thus the notion collapses that Congress may effectively regulate

its delegations after the fact. While the mechanism theoretically

exists, it cannot be viewed as providing the proper check on the

bounds of discretion exercised by administrative agencies.

Thus, for the time being, this Court is the only forum in

which an effective veto of legislative power unconstitutionally

assumed by the executive or administrative agents may be had.

The future may hold further refinements or improvements.

Indeed the Parties note then-Judge Breyer’s effective invitation

to Congress to try what we term for these purposes the

“legislative proto”, see Breyer, Stephen, The Legislative Veto

After Chada, 72 Georgetown Law Journal 785 (1984),

“My [legislative] veto substitute...could replace

veto provisions in present statutes with provisions that

conditioned the legal effect of exercise of delegated

authority on subsequent enactment of a confirmatory

statute”, Id. at 793.'4

13 CONt. passed Section 404 of the Clean Water Act, 33 U.S.C. § 1344. Nonethe-

less, in resolving the apparent ambiguity the Court coupled the newly an-

nounced Chevron deference with the following thoughts of Justice White, writ-

ing for the Court:

“Although we are chary of attributing significance to Congress’ failure to

act, a refusal by Congress to overrule an agency's construction of legisla-

tion is at least some evidence of the reasonableness of that construction,

particularly where the administrative construction has been brought to

Congress’ attention through legislation specifically designed to supplant

it.”, Riverside, 474 U.S. at 137.

The significant peril that this hazards for Congress is manifest. If Congress ex-

amines statutory ambiguity as is clearly within its ambit, but fails a

Supermajoritarian effort at invalidating questionable adherence by an agency’s

Statutory interpretation to Congressional intent — this effect not always being

clear in a straight up vote, but perhaps manifesting itself as the abandonment of

corrective language in committee or conference as a consequence of the futility

of an eventual supermajoritarian test — Congress's failure to legislate an ex-

plicit correction will be held to virtually endorse the interpretation. On the other

hand if the Congress acquiesces quietly to the standard over some time, a form

of legislative stare decisis will attach. The Parties suggest that this presents a

‘damned if they do and damned if they don’t’ choice which should be avoided.

14 Then-Judge Breyer posited that such an approach would most closely ap-

proximate the “legislative veto” if Congress were to adopt “fast-track” rules

for consideration of such confirmatory statutes. Even if Justice Breyer

25

We believe this a manifestly sensible recommendation,

both generally, and in the present case. Congress could

obviously use such a mechanism for the reconciliation of

ambiguities that would properly bound Chevron deference in

statutory interpretations. Then-Judge Breyer imagined that it

might obviate the principal function of judicial review of agency

actions, i.e., determining whether they are arbitrary when held

up against the statute under which they are taken, see /d. at

795. Since the rules themselves, which would be confirmed by

statute, are then subject to agency “policies and practices” the

Parties believe that the confirmatory statute idea does not hazard

a work shortage for jurists.

In such a “legislative proto” world, the courts would be

more free to concentrate on the issues of enforcement discretion

which Kenneth Culp Davis tends to commingle with non-

delegation problems (see generally Davis, Kenneth Culp, A New

Approach to Delegation, 36 U. Chi. L. Rev. 713 (1969), esp.

Chapter IV. Judicial Acquiescence in Administrative Exercise

of Ungranted Power, /d. at 722-725). The Parties agree that

selective enforcement and prosecutorial discretion go begging

for redress as surely today as they did in 1969; however, these

are preponderantly issues of performance of clearly executive

duties, not those delegated to the agency by the legislature. It

clouds the issue to reach purely executive discretion when

examining discretionary grants of legislative power.

The Parties are, in fact, so impressed with the idea of the

“legislative proto” that they essentially ask this Court to effect

the judicial equivalent for the constitutional question before it

(one that the Parties acknowledge would likely seldom be

reached if the “legislative proto” were in place in this and other

statutes). Thus the Parties encourage this Court to answer the

14 cont. posited this substitute more as an abstract constitutional proposition

i ive, the parties view the mechanism as a more system-

aren sree 8 tan nent some of the deficiencies i that

Justice Breyer apparently sees in looking to Congress for improvements in

regulatory outcomes that speak to “a public that ‘really’ wants an overall re-

sult that differs from the substance-specific preferences revealed on particular

ions”, Steph ,

Sisk Remdndon Harvest University Press, Cambridge, MA, 1993, p. 55, 57

26

first question presented in the affirmative and remand the statute

in the narrow context of the rulemaking at issue here to Congress

for a confirmatory statute, or other action or inaction of its

choosing. For now, that is the only way to protect the Consti-

tution in the present context. Judicial restraint would otherwise

be mistakenly exercised to ‘save’ this statute in the narrow

context in which its validity is here in question. This is the

solution accomplishing the main purpose of the non-delegation

doctrine,

“[to] ensure| | to the extent consistent with orderly

governmental administration that important choices of

social policy are made by Congress, the branch of our

Government most responsive to the popular will”,

Benzene, 448 U.S. 607, 685 (Rehnquist, J., concurring).

IX. A narrow but firm decision will have limited,

measured and necessary effects.

At the time, governmental calamity was widely if

hyperbolically suggested as a result of the formalistic holdings

in Chada. Almost a generation later, it appears more a legislative

speed bump than a roadblock. While a proper and deliberate

alternative to the legislative veto has taken its time appearing

— and to the extent that it exists is reflected by, inter alia, the

Regulatory Flexibility Act, 5 U.S.C. § 601, which, ironically,

were avoided in the present rulemaking — no one would allege

that civil society is on the brink of collapse as a result.

The Parties admit that reaffirming the lines between

executive and legislative power in the non-delegation context

will be ritualistically condemned by some as unappreciative of

the complexities of modern society. But, the Parties favor

replacing neither the constitutional system nor the jury system,

both of which have been subject to criticisms of their

contemporary relevance in a post-industrial age, with a tyranny

of technocracy.!> Still, one must address whether the practical

result of the narrow holdings the Parties beg would somehow

15 Then-Judge Breyer recognized that early administrative thinkers at the time

of the New Deal saw the possibility that regulation itself, as opposed to por-

tions of its substance, would become its own “science”, including self-imposed

ee i, ——e

27

hazard wide upheaval inversely proportional to their focus.

The Parties suppose that petitioners’ camp, who essentially

beg that this Court reverse the D.C. Circuit by finding their

policy imperatives superior to time-worn constitutional bounds,

would be aghast at the answer the Parties propose. But Parties

doubt unwarranted impacts from ruling narrowly yet still firmly.

No assault has been made on the existing standard, nor any

suggestion that it and other standards would evaporate as a

matter of the precise considerations here. Not only has the

former standard stood unchallenged for some time giving it

that measure of legislative stare decisis, ali would likely admit,

but it has been explicitly articulated by Congress in the Clean

Air Act Amendments of 1990, Pub. L. No. 101-549, 104 Stat.

2399, 42 U.S.C. § 7511(a)(1). That is not to say that it was

never conceived that EPA would revise the standard, but that

EPA was certainly envisioned to so do within constitutional

bounds. Narrow invalidity for the new standard will clearly

leave the former standard as protection.

15 cont. “In place of legal procedures and safeguards, defenders of the New

Deal agencies relied upon the expert professionalism of

administrators. . The legitimacy of their decisions would rest upon their

“scientific” correctness.”, Breyer, Stephen, Regulation and its Reform

Harvard University Press, Cambridge, MA, 1982, p. 351 (referencing

Landis, J., The Administrative Process, New Haven, CT 1938).

Justice Breyer has also noticed that this notion, and the subsequent notion of

the 1940's and the 1950's that “fair and open as embodied in the

Administrative Procedures Act [Act of June 11, 1946, ch. 324, 60 Stat. 237],

would keep agency power in check” have both been unfulfilled. See Breyer,

Stephen, The Legislative Veto after Chada, 72 Georgetown L. J. 785, 796

(1984). Even if one viewed the “scientific managerialism” model of the 1930s

as even somewhat relevant, it vacates the very model of agency expertise in

the present matter. "PA itself admits that the standard revision presently at

issue involves trading health effects, and indeed lives, for practicality. This is

a moral, not scientific conundrum.

It is remotely conceivable that Congress could have set up some kind of

philosophical review authority to interpret “an adequate margin of safety” in

an ethical context; but Congress did not do so. This imaginary moral author-

ity could certainly create facial non-delegation problems, although, its area of

expertise would, at least theoretically, be suitable to the decision required here.

That said, it is a proposition manifestly contrary to our system of government.

Be they Rhodes Scholars or rogues, this country selects its policy leaders

through congressional elections. Science should inform policy, not make it.

28

This is also true for particulate matter, PM 10, for which

a current standard exists. However, one might argue that this is

the first standard setting for small particulate matter, i.e., PM

2.5 — albeit PM 2.5 is, to some effect, included in PM 10.

Assuming, arguendo, however that the standard at issue is a

non-existing standard, the consequence of invalidating the rule

is merely delaying it for a time to see if Congress will provide

it some structure, but the rule has never existed for the 30 years

of the CAA. This is not somehow the upsetting of 30 years of

settled enforcement.

Thus it can be seen that when inquiring into the impact of

this narrow statutory invalidation, where the action in question

conceives of a new standard or plan, no long-standing program

is at hazard. Where a long-standing standard or program exists

and some rule or revision exceeds discretionary bounds,

meriting a similar fate to that which the Parties urge for the rule

here, the long-standing rule or program remains in place.

Thus a decision to find the statute narrowly invalid, as

interpreted, with respect to this rulemaking and remanding it to

Congress for some confirmatory or clarifying statute actually

has very little effect on the execution of government programs.

It may be argued that a danger exists that Congress will

not confirm the rule. To argue this in the particular case is to

admit to a usurpation of congressional authority in a way for

which the Agency is unsure it could obtain congressional

endorsement. Of course, in this situation, the shoe is properly

on the other foot. The current situation is that Congress is simply

understood as having endorsed the interpretation whether it does

nothing or whether it fails at a legislative attempt to overturn it

(see the Parties’ arguments at p. 23-24, n. 13, supra).

The truly old saw in this regard is that Congress simply

does not have the time or expertise to make the necessary rules.

That does not justify usurpation and it presupposes to an extent

that Congress would start afresh, without the benefit of the

public debate attending the invalidated rulemaking process to

inform its own deliberations. Even with an administrative

record, it is certain that congressional undertakings are no mean

feat; but neither is there any evidence that Congress cannot and

29

will not act with dispatch when the social policy at stake

demands it. Congress's failure to act in whatever time frame

can justly be interpreted as lacking the very will that agencies

so often claim to be carrying out. The Parties suggest that where

there is no will, there is no way.

We must truly defer, in the realm of whether more effective

congressional engagement in writing or confirming rules to

avoid excessive delegation somehow hazards the end of civil

government, to the preeminent scholar in this regard. With no

impoliteness intended to Kenneth Culp Davis whose work the

EDF believes informed the direction of the appeals court (see

EDF Brief, p. 6), the Parties must recommend instead David

Schoenbrod as a scholarly authority who argues succinctly and

on point that “Congress Has Enough Time to Make the Laws”.

In fact he devotes an entire chapter of his seminal work Power

Without Responsibility, How Congress Abuses the People

Through Delegation (Yale University Press, New Haven, 1993),

to just this proposition (see pp. 135-152).

Reference to the importance of Schoenbrod’s work by

the Parties is critical beyond their respect for his scholarship.

As groups composed of resource workers, property owners and

recreators who strongly believe that excessive delegation of

legislative power, or its corollary usurpation by the executive,

has infringed property rights, limited multiple use of public

lands, and has damaged communities and undercut rural

industriousness, the Parties see an executive that has

overreached. This is the Parties’ admitted motivation in

appearing here, but as a consequence of the focus of their

activism on advancing property rights, sustainable resource

exploitation and public lands access, the Parties are

inappropriately but unavoidably conceived of by policy

adversaries as not valuing environmental quality in the pursuit

of their objectives. Schoenbrod, on the other hand, whose work

the Parties recommend to the Court in resolving this matter, is

effectively the Parties’ complement, focusing on environmental

quality that may go begging as a result of excessive delegation:

30

“As a student during the 1960s, I spent my

summers working for the perfect apostle of the New Deal,

Hubert Humphrey, and aspired someday to sit in

Congress or run an agency that, in the New Deal mold,

would make laws. By the 1970s, like much of my

generation, I had come to distrust agencies, and served as

one of the leaders of the Natural Resources Defense

Council, a non-profit corporation that pressured agencies

to make laws that would fulfill the promises of

environmental statutes. That experience made me see

Statutes that delegate as a way for politicians to play to the

grandstand rather than to make the hard choices needed to

protect the public. It started me wondering whether the

public really benefits from delegation. Seeking an answer

to that question, I became a legal scholar.

I now believe that delegation has produced a

regulatory system so cumbersome that it cannot provide

the protection that people do need, so large that it

needlessly stifles the economy, and so complex that it

keeps voters from knowing whom to hold accountable for

the consequences.” /d. at ix-x.

Schoenbrod’s work is a significant testament to how

limited delegation can work, garnering praise from reviewers

as disparate as former Senator Bill Bradley and Judge Robert

H. Bork. Schoenbrod’s ideas are not gospel despite the

metaphor, and certainly should be subject to the rigors of the

very governmental processes he would improve. This debate,

however, will never be meaningfully joined without this Court’s

willingness to force the hands of the players.

CONCLUSION — A narrow but firm holding is called for.

In consideration of the foregoing, the Parties urge that

this Court answer question one as presented in the affirmative

and, in so doing, declare Section 109 of the Clean Air Act, 42

U.S.C. § 4709, unconstitutional and void as interpreted by EPA

with respect to any revision of the ozone and particulate matter

standards.

31

Respectfully submitted.

CHRISTOPHER C. HORNER

Counsel of Record

and Counsel for Amici Curiae

813 Duke Street

Alexandria, Virginia 22314

(703) 549-9989