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

FILED

No. 99-1426 ‘Jue 2 1 2000

3n the Supreme Court of tha ¥nited States

AMERICAN TRUCKING ASSOCIATIONS, INC., ET AL.,

Vv.

Cross-Petitioners,

CAROL M. BROWNER, ADMINISTRATOR OF THE,

ENVIRONMENTAL PROTECTION AGENCY, ET AL.,

Cross-Respondents.

ON WRIT OF CERTIORARI TO

THE UNITED STATES COURT OF APPEALS

FOR THE DISTRICT OF COLUMBIA CIRCUIT

BRIEF AMICI CURIAE OF

WASHINGTON LEGAL FOUNDATION

AND ALLIED EDUCATIONAL FOUNDATION

IN SUPPORT OF CROSS-PETITIONERS

DANIEL J. POPEO

PAUL D. KAMENAR

WASHINGTON LEGAL FOUNDATION

2009 Massachusetts Ave., N.W.

Washington, D.C. 20036

(202) 588-0302

July 21, 2000

PAUL D. CLEMENT

(Counsel! of Record)

JEFFREY S. BUCHOLTZ

KING & SPALDING

1730 Pennsylvania Ave., N.W.

Washington, D.C. 20006

(202) 737-0500

TN a

WILSON-EPES PRINTING CO., INC. - (202) 789-0096 - WASHINGTON, D. C. 20001

Supreme Court, U.S.

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- QUESTION PRESENTED

Whether the Clean Air Act requires that the

Environmental Protection Agency must, in_ setting

nationwide air-quality standards, ignore all factors “other

than health effects relating to pollutants in the air,” given that

consideration of such factors would permit both the Agency

and reviewing courts to avoid confronting constitutional

nondelegation issues.

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QUESTION PRESENTED

TABLE OF AUTHORITIES

INTEREST OF AMICI CURIAE

SUMMARY OF ARGUMENT

Il.

TABLE OF CONTENTS

CONGRESS HAS NOT PRECLUDED EPA

FROM CONSIDERING COST, FEASIBILITY,

OR THE SIGNIFICANCE OF HEALTH RISKS

IN SETTING NAAQS .......csccssccssssssssessssssesssssssesesssseee

A. Nothing in the Text or Structure of the Act

Prohibits the Use of Limiting Principles................

B. Unless a Statute Precludes It, an Agency

Should Be Permitted to Consider Cost,

Feasibility, and the Significance of Harms ............

THE CLEAN AIR ACT, AS CONSTRUED BY

EPA, CANNOT BE SQUARED WITH THE

NON-DELEGATION DOCTRINE ...........:ccccccesceseeees

A. Despite the Difficulty of Applying It, the

Non-Delegation Doctrine Remains an

Important Constitutional Principle.....................

B. EPA’s Construction of the Act Raises a

Distinct Non-Delegation Problem From That

Typically Considered by This Court......................

POP PPR RR ERE REE EEE EEE EERE EEE EERE EERE EEE ERT)

TPP REPRE EEE EEE EE SEES EEE

(PRR REESE RESP EEE EERE EERE RES ERSTE EEE REESE

iv

Ill. THE COURT CAN AVOID NON-DELEGATION

DIFFICULTIES BY INTERPRETING THE ACT TO

REQUIRE CONSIDERATION OF _ COSTS,

FEASIBILITY, AND SIGNIFICANCE ..............0000000000: 19

A. The Non-Delegation Doctrine Is Well-Suited

For Use as a Tool to Avoid Constitutionally

Suspect Interpretations of Statutes.......................00000: 20

B. This Court Consistently Has Applied Non-

Delegation Principles as an Aid to Statutory

SII sscrencteccessesetitemtenttsttletnntenditaanmennenatantitiniiidans 24

C. The Non-Delegation Problems Raised by

EPA’s Suggested Interpretation of the Clean

Air Act Doom That Construction of the

re oe : a

Vv

TABLE OF AUTHORITIES

Cases: Page

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

et ee cennnitiennmrececionennamatcnnenenanee 12, 24

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

a ee Ge icrcntniaiininindnncientninnnannniteninmnent 11

Ashwander v. Tennessee Valley Auth., '

eee passim

Bell Atlantic Tel. Co. v. FCC,

eK 26

Chamber of Commerce v. Federal Election Comm'n,

A KR en 26

Chevron U.S.A., Inc. v. NRDC, Inc.,

= IT Bar Ca ccencnsrssssseszcczsssenssesessmesssenseens passim

Clinton v. City of New York,

es Ce Ce itrnisterrcennnninmntemnsimmmnneennes 25

Daubert v. Merrell Dow Pharmaceuticals, Inc.,

ee 17

Edward J. DeBartolo Corp. v. Florida Gulf

Coast Building & Constr. Trades Council,

On 25, 26, 27

Federal Power Comm'n v. Hope Natural Gas Co.,

en 12, 14, 15

Garcia v. San Antonio Metropolitan Transit Auth.,

GP de Ga crencertnerneqemeememnenmnnnen 21, 22

Gregory v. Ashcroft, 501 U.S. 452 (1991)............ 21, 22, 26

Greene v. McElroy, 360 U.S. 474 (1959) .......ccccccceceeeeeees 23

Guillou v. State Div. of Motor Vehicles,

SD A.D eee CD crentccssnectenerennensrecessrmmemeens 13

ICC v. Goodrich Transit Co., 224 U.S. 194 (1912).......... 15.

Industrial Union Dep't v. American Petroleum Inst.,

RS passim

vi

International Ass'n of Machinists v. Street, _

ee Se icnirttancttiaianitensereadiniintiigepunataiainiiais 22

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

es i iticiicntiitiieninncdsaniteaicntianunied 12, 24

Kent v. Dulles, 357 U.S. 116 (1958) ............cc00000: 24, 27, 28

Lead Industries Ass'n, Inc. v. EPA,

647 F.2d 1130 (D.C. Cir. 1980) ..0.0.....cc cece passim

Miller v. French, 120 S.Ct. 2246 (2000) .........cccccccceeeseeeees 26

Mistretia v. United States, 488 U.S. 361 (1989)... 12, 13, 20

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

Automobile Ins. Co., 463 U.S. 29 (1983) .........ccccc00000 11

NRDC v. EPA, 824 F.2d 1146 (D.C. Cir. 1987) ........... 6, 10

National Broadcasting Co. v. United States,

I i ninsicsinsinietiesrrcsaseemnmmennntenaiinniniatidiaiai 12

National Cable Television Ass'n, Inc. v.

United States, 415 U.S. 336 (1974)..........000000 24, 27, 28

NLRB v. The Catholic Bishop of

Chicago, 440. U.S. 490 (1979) ......cccccccccccceeeeeeeeees 25, 26

Panama Refining Co. v. Ryan, 293 U.S. 388 (1935) ........ 12

Rodriguez v. United States, 480 U.S. 522 (1987)..... 2, 8, 10

State of Michigan v. U.S. EPA, 213 F.3d 663

eee NN HT ncicsrininrininnierecnieiniinasinnanaisrntstaammapnemanmmeaits 10

Sunshine Anthracite Coal Co. v. Adkins,

es Be icncntiitetinitiniisrnnneastedintniaitineiemmann 15

ee )

Texas Sav. & Commun. Bankers Ass'n v. Federal

Housing Fin. Bd., 201 F.3d 551 (Sth Cir. 2000)........... 7

Touby v. United States, 500 U.S. 160 (1991).............. 12, 13

Union Elec. Co. v. EPA, 427 U.S. 246 (1976) .....ccccccccceseees 5

Unitéd States v. Bass, 404 U.S. 336 (1971) .....cccccccccseeeeees 22

Wayman v. Southard, 23 U.S. (10 Wheat.) 1 (1825) .. 20, 21

Yakus v. United States, 321 U.S. 414 (1944).............. 12,14

vii

Constitutional Provisions, Statutes, and Rules:

ee i BF 6 B sccrssesrssotsmnnscitorcecmneretenenmnnnensnmenan 13

a ies OF CS crcerennnnecneesererncemes meenentabitntepiantmeanneens 5,7

ee Oe Se ccncncnsetcrensieceanternsmnnpeemeremennnnnenein 4,5

ie 0) Pe eteenerepensnnessgrncsccsnssvesemmnessatetenensmenensns passim

rs es Se Oe ccnccsemernsenenenemneneeeeeenen 17

Other Materials:

Stephen Breyer, BREAKING THE VICIOUS CIRCLE:

TOWARD EFFECTIVE RISK REGULATION (1993) ............ 8

Stephen G. Breyer & Richard B. Stewart, ADMINISTRATIVE

LAW AND REGULATORY POLICY (3d ed. 1992) ........... 18

Exec. Order No. 12,866 (Sept. 30, 1993)............ccc000 i0, 16

Gary J. Greco, Standards or Safeguards: A Survey

of the Delegation Doctrine in the States, 8 Admin.

se a SED, Wie ee ee carcenecenssscteesectttenncseemnccgen 14

H.R. Rep. No. 95-294, 95th Cong., Ist Sess. (1977) ......... 7

S. Rep. No. 1301, 89th Cong., 2d Sess. (1966)..............04. 11

Cass Sunstein, Js the Clean Air Act Unconstitutional?,

98 Mich. L. Rev. 303 (1999)..........cccccssecseeeeeeseeeenees 23

Cass Sunstein, Nondelegation Canons, 67 U. Chi. L. Rev.

Pe iaceceresecpnienesnninnsenteqrematnmmanmmmannenennes 23

Charles D. Weller and David B. Graham, New

Approaches to Environmental Law and Agency

Regulation: The Daubert Litigation Approach,

30 Envtl. L. Rep. 10557 (2000)............cccccccsecceeeeeereeees 17

J. Skelly Wright, Beyond Discretionary Justice,

Be eh OUD crntenenncsmneenreenmnssenntennenemensn 6

INTEREST OF AMICI CURIAE

The Washington Legal Foundation (“WLF”) is a

nonprofit public interest law and policy center based in

Washington, D.C., with supporters nationwide. WLF

regularly appears in federal and state court proceedings to

defend the principles of free enterprise and limited and

accountable government. WLF has appeared before this

Court on numerous occasions as amicus curiae in cases

involving statutory interpretation and separation of powers.

See, e.g., FDA v. Brown & Williamson Tobacco Corp. 120 S.

Ct. 1291 (2000); Gregory v. Ashcroft, 501 U.S. 452 (1991).

WLF also filed comments before EPA opposing the

promulgation of the NAAQS at issue in this case.

The Allied Educational Foundation (“AEF”) is a

non-profit charitable and educational foundation based in

New Jersey. Founded in 1964, AEF is dedicated to

promoting education in diverse areas of study, including law

and public policy. AEF has appeared as amicus curiae

before this Court in many cases along with WLF. '

Amici are interested in both the statutory interpretation

issue presented in this cross-petition and the non-delegation

issue presented in Browner v. American Trucking Ass'ns,

No. 99-1257. This brief addresses both questions not only in

the interest of judicial economy, but because the issues are

closely related and fairly raised in the cross-petition,

especially in light of this Court’s practice of interpreting

Statutes to avoid potential constitutional difficulties. See

Section III, infra. Amici submit this brief in support of

Respondents/Cross-Petitioners ATA, et al., with the consent

of all parties. Letters of consent have been filed with the

Clerk of the Court.

' No counsel for a party authored this brief in whole or in part, and no

person or entity, other than amici curiae and their counsel, made a

monetary contribution to the preparation and submission of this brief.

2

SUMMARY OF ARGUMENT

Nothing in the text of the Clean Air Act suggests that

EPA cannot take into account economic impact, feasibility,

and the significance of the targeted health risks in setting

NAAQS. Nonetheless, the court below accepted EPA’s

argument that the Act forbids the agency from taking these

factors into account, relying on Lead Industries Ass'n, Inc. v.

EPA, 647 F.2d 1130 (D.C. Cir. 1980).

That decision effectively forces EPA to blind itself to one

side of the regulatory equation. If EPA can consider only

health factors, without evaluating economic impact,

feasibility, or the significance of risks, the only determinate

level for any pollutant is that which eliminates all health

risks. Short of such a zero-tolerance standard, which

understandably, no party advocates, EPA is left adrift. EPA

always can justify pushing the acceptable level of pollution

closer to zero-tolerance, and the point short of zero-tolerance

that EPA chooses is the product of agency whim rather than

rational application of a legislated standard.

This interpretation raises serious and unique non-

delegation problems. Although this Court repeatedly has

rejected claims that Congress failed to provide sufficient

guidance in a grant of broad regulatory authority, this case

involves a distinct non-delegation problem. Here the

difficulty is that the statute, as interpreted by EPA,

affirmatively deprives the agency of the necessary regulatory

tools to set NAAQS in a rational manner. Unlike the typical

complaint that Congress omitted intelligible principles, this

case involves an error of commission.

This Court should interpret the Clean Air Act to avoid

this potential constitutional difficulty. Nothing in the Act

precludes consideration of the limiting principies necessary

to allow EPA to set NAAQS according to intelligible

principles. The D.C. Circuit’s contrary conclusion rests on a

misreading of the statute and a failure to heed the common-

3

sense notion that “no legislation pursues its purposes at all

costs.” Rodriguez v. United States, 480 U.S. 522, 525-26

(1987) (per curiam). The text of the Act clearly permits EPA

to consider costs, feasibility, and significance, and requiring

EPA to consider those factors avoids potential non-

delegation difficulties.

This Court has long recognized the challenges of

discerning the precise limits of the non-delegation doctrine,

see, e.g., Wayman v. Southard, 23 U.S. (10 Wheat.) 1, 46

(1825). Nonetheless, no Justice has doubted the importance

of the constitutional principles reflected in the doctrine, and

the Court continues to use the doctrine to narrow broad

grants of discretionary authority. As Chief Justice Marshall

recognized in Wayman, “the precise boundary of [the

doctrine] is a subject of delicate and difficult inquiry, into

which a Court will not enter unnecessarily.” /d. Interpreting

the Act to require EPA to consider economic impact,

feasibility, and significance avoids a “delicate and difficult

inquiry” into the limits of the non-delegation doctrine.

The problem here inheres in Lead Industries, not the

Clean Air Act. This Court should reject the former to save

the latter from unconstitutional application.

ARGUMENT

I. CONGRESS HAS NOT PRECLUDED EPA FROM

CONSIDERING COST, FEASIBILITY, OR THE

SIGNIFICANCE OF HEALTH RISKS IN SETTING

NAAQS

A. Nothing in the Text or Structure of the Act

Prohibits the Use of Limiting Principles

Subsection 109(b)(1), 42 U.S.C. § 7409(b)(1), directs

EPA to set NAAQS “the attainment and maintenance of

which in the judgment of the Administrator, based on such

4

criteria and allowing an adequate margin of safety, are

requisite to protect the public health.” On its face, this

provision does not rule out consideration of the cost and

feasibility of compliance or the significance of health risks.

The D.C. Circuit’s view that “Congress direct[ed] [the]

agency to consider only certain factors in reaching an

administrative decision,” Lead Industries, 647 F.2d at 1150,

has no support in the statute’s text. While the court claimed

that “the statute and its legislative history make clear that

economic considerations play no part in the promulgation of

ambient air quality standards under Section 109,” id. at 1148,

it was at best half right. Nothing in “the statute” remotely

compels this counterintuitive conclusion.

Lead Industries’ brief discussion of the statute (a

prologue to its much more extensive analysis of legislative

history) is deeply flawed. The court relied on § 109(b)(1)’s

reference to “such criteria” and § 110’s standards for EPA

review of state implementation plans (“SIPs”) to “confirm

the view that the Administrator is not required or allowed to

consider economic and technological feasibility in setting air

quality standards.” 647 F.2d at 1149 n.37.

In reality, both of these provisions confirm that Congress

did not prohibit EPA from considering cost or feasibility or

from targeting only significant risks to _ health.

Section 109(b)(1)’s reference to “such criteria” refers back to

§ 108(a)(2), which requires EPA to issue “air quality

criteria” for each pollutant. As even Lead Industries

recognized, “criteria” as used here is a term of art denoting a

document, not a set of factors or a standard for decision. See

647 F.2d at 1136-37. What is more, the statute’s instruction

that “(t]he criteria for an air pollutant, to the extent

practicable, shall include information on” certain issues, 42

U.S.C. § 7408(a)(2) (emphasis added), is, by its very terms,

inclusive rather than exclusive. Accordingly, § 109(b)(1)’s

reference to “such criteria” provides no warrant for the

exclusion of cost and related considerations.

5

Section 110 likewise confirms that the Act does not

foreclose the consideration of economic impact, feasibility,

or significance. Nothing in § 110 expressly authorizes States

to consider cost and feasibility in selecting a mix of control

devices to meet the NAAQS set by EPA. Yet it is settled

that States may do so. See, e.g., Union Elec. Co. v. EPA, 427

U.S. 246, 266 (1976). As Lead Industries recognized, the

statute does make clear that States may consider cost and

feasibility “only insofar as this does not interfere with

meeting the strict deadlines for attainment of the standards.”

647 F.2d at 1149 n.37. Lead Industries misconstrued this

partial limitation as an explicit authorization for States to

consider cost that is missing with respect to EPA. However,

this limitation on state authority is just that. States’ ability to

consider cost and feasibility was an unstated default

assumption of the statute, and that same default assumption

should apply to EPA, see Section IB, infra”

Lead Industries’ conclusion also is in tension with §

108(b)(1). That provision requires EPA to provide States

with “data relating to the cost of installation and operation”

of control measures before it opens a NAAQS rulemaking.

42 U.S.C. § 7408(b)(1). This requirement enables States to

address cost issues in their comments. It would make little

sense (and, indeed, would create a moral hazard) to direct

EPA to develop and provide this information before

beginning a rulemaking, only to require EPA to ignore it

during the rulemaking.

? Lead Industries also noted that “the Administrator, in reviewing a [SIP],

may not consider economic or technological feasibility.” /d. This fact is

equally irrelevant. Congress’ decision not to authorize EPA to second-

guess States’ choices about how to meet EPA’s standards reflects basic

principles of federalism expressly affirmed in the Act, and has no bearing

on whether EPA may consider cost or feasibility in setting those

standards. See 42 U.S.C. § 7401(a)(3) (finding that air pollution control

“is the primary responsibility of States and local governments”).

6

For these reasons, nothing in the text of the Act supports

Lead Industries’ holding. Indeed, Lead Industries did not

seriously attempt to rest its holding on the statutory text.

The court noted that “Section 109(b) does not specify

precisely what Congress had in mind when it directed the

Administrator to prescribe air quality standards that are

‘requisite to protect the public health.” 647 F.2d at 1152.

After Chevron U.S.A., Inc. v. NRDC, Inc., 467 U.S. 837

(1984), this observation would lead a court to conclude that

Congress has not “directly spoken to the precise question,”

id. at 842, of whether EPA can consider costs, feasibility,

and significance.’ That recognition, in turn, would compel

the conclusion that the statute does not preclude EPA from

considering these factors. See id. at 843.

Rather than analyze the statutory text in any depth,

however, Lead Industries jumped directly from _ its

recognition that the “requisite to protect the public health”

standard was ambiguous into an extended analysis of

* Subsequent D.C. Circuit cases have read Lead Industries as equivalent

to a Chevron step-one case, holding that the “statute on its face does not

allow consideration of technological or economic feasibility.” NRDC v.

EPA, 824 F.2d 1146, 1158-59 (D.C. Cir. 1987) (en banc) (“Vinyl

Chloride”). In reality, however, the “statute on its face” is silent on that

question, and Congress therefore has not “directly spoken to the precise

question at issue.” Chevron, 467 U.S. at 842.

* To be sure, Lead Industries might have reached the same result by

upholding EPA’s position under step two of Chevron. But that reflects

the fact that no party raised a non-delegation claim necessitating the

application of principles of constitutional avoidance that would make

Chevron deference inappropriate. See Section Ill, infra. In fact, the

author of Lead Industries advocated applying the non-delegation doctrine

as a constitutional avoidance principle. See J. Skelly Wright, Beyond

Discretionary Justice, 81 Yale L. J. 575, 596 (1972) (“the very breadth”

of many statutory delegations “provides an argument for a narrowing

judicial construction”). At the very least, § 109(b)(1) certainly does not

prohibit the consideration of costs with such clarity that no saving

construction is possible. See Section III, infra.

7

legislative history. The court devoted four pages to

considering the meaning of “adverse health effects,” a term

that appears nowhere in the statute, and held that the goal of

protecting the public from “adverse health effects” doomed

the argument that the statute covered only “clearly harmful”

health effects. See id. at 1152-55. This approach cannot be

reconciled with Chevron, the proper relationship between

statutory text and legislative history,” or, as demonstrated in

Section III, infra, principles of constitutional avoidance.°

* The court searched the legislative history for a legislative purpose while

ignoring the purposes set forth in the statute itself. The Act’s

“declaration of purpose,” which unlike the legislative history was enacted

by Congress and approved by the President, demonstrates that Congress’

intent was far more balanced. The Act expresses an intent to promote

“the productive capacity of [the Nation’s] population,” a purpose that

hardly suggests a mandate to ignore compliance costs. 42 U.S.C. §

7401(b)(1). Moreover, Congress also declared “[a] primary goal” of

promoting “reasonable” governmental actions, 42 U.S.C. § 7401(c),

which counsels in favor of requiring a reasonable relationship between

the costs and benefits of regulations.

° In any event, the legislative history of the Act, not surprisingly, does

not speak with a single, clear voice on the consideration of economic

factors. See, e.g., H.R. Rep. No. 95-294, 95" Cong., 1" Sess. 127 (1977)

(“Some have suggested that since the standards are to protect against all

known or anticipated effects and since no safe thresholds can be

established, the ambient standards should [b]e set at zero or background

levels. Obviously, this no-risk philosophy ignores all economic and

social consequences and is impractical.”) (quoted in Lead /ndustries, 647

F.2d at 1151 n41). Moreover, the legislative history is silent on the

precise question of whether EPA can consider costs, feasibility, and

significance in setting NAAQS under § 109(b)(1). Of course, “[iJt is a

rare case indeed in which the legislative history alone will permit [a

court] to find that Congress has addressed the precise question at issue.”

Texas Sav. & Commun. Bankers Ass'n v. Federal Housing Fin. Bd., 201

F.3d 551, 555 n.4 (5™ Cir. 2000) (quotation omitted).

B. Unless a Statute Precludes It, an Agency

Should Be Permitted to Consider Cost,

Feasibility, and the Significance of Harms

Lead Industries conflicts not only with the relevant

principles of statutory construction, but with common sense

as well. Lead Industries read congressional silence to

preclude EPA from considering cost, feasibility, or

significance. However, common sense dictates that, unless

expressly forbidden, an agency should be free to take these

factors into account. This default rule of construction

recognizes that Congress usually, and understandably, does

not intend agencies to promulgate regulations that produce

little benefit at great cost or that seek to eliminate every risk

to health, no matter how improbable or trivial. As this Court

has emphasized, “no legislation pursues its purposes at all

costs.” Rodriguez v. United States, 480 U.S. 522, 525-26

(1987) (per curiam). If, on occasion, Congress intends

otherwise, it should make that extraordinary intent

unmistakably clear in the statute.

The Act here does not expressly preclude consideration

of costs, feasibility, and significance, and the statutory text is

consistent with the consideration of these regulatory factors.

None of the relevant statutory terms - “health,” “protect,”

“safety,” and “adequate” — is absolute. See, e.g., Stephen

Breyer, BREAKING THE VICIOUS CIRCLE: TOWARD EFFECTIVE

RISK REGULATION 76 (1993) (“the meaning of the word

‘safety’ . . . depends, in part, upon context”). Nor has

Congress decreed absolutist mandates. Congress has not, for

example, mandated that NAAQS “shall protect the public

health at all cost,” or protect against “any threat to public

health.” Likewise, Congress did not define “health” or

“safety” as “the absence of any and all bodily effects” or of

9

“any and all risk.”’ Accordingly, this Court should read §

109(b)(1) to allow for the consideration of compliance costs,

feasibility, and the relative significance of health risks.

Courts repeatedly have recognized the common-sense

presumption that agencies may consider such factors. In the

Benzene case, this Court confronted an OSHA Act provision

that sought health goals in aspirational language. See

Industrial Union Dep't v. American Petroleum Inst., 448

U.S. 607, 639 (1980) (addressing a standard providing that

“no employee will suffer material impairment of health or

functional capacity”). The statute explicitly directed the

agency to consider feasibility and did not expressly limit

regulations to those necessary to prevent “a significant risk

of harm.” Nonetheless, the Court recognized that Congress

must have intended such a limitation. /d. at 642. Observing

that “‘safe’ is not the equivalent of ‘risk-free,”” id., the

plurality rejected OSHA’s view that the statute was intended

“to eliminate completely and with absolute certainty any risk

of serious harm,” id. at 641, and held instead that “a

workplace can hardly be considered ‘unsafe’ unless it

threatens the workers with a significant risk of harm.” /d. at

642.

Benezene's rule of construction applies with even greater

force in this case because EPA views the statute as

foreclosing consideration of feasibility, cost, and the

significance of risks. “In the absence of a clear mandate in

the Act, it is unreasonable to assume that Congress intended

to give [EPA] the unprecedented power over American

industry that would result from the Government's view” that

EPA has authority “to impose enormous costs that might

produce little, if any, discernible benefit.” /d. at 645.

’ This distinguishes TVA v. Hill, 437 U.S. 153 (1978), on which Lead

Industries relied. In Hill, the Court noted that Congress employed

absolute language that “admits of no exception.” 437 U.S. at 173.

10

The D.C. Circuit has applied this presumption to a

different provision of the Clean Air Act. Rejecting the

argument that EPA could not consider cost in determining

appropriate remedies to prevent one State’s emissions from

“contribut[ing] significantly” to nonattainment in a

neighboring State, the court reaffirmed the “settled” rule that

“[ijt is only where there is ‘citar congressional intent to

preclude consideration of cost’ that we find agencies barred

from considering costs.” State of Michigan v. U.S. EPA, 213

F.3d 663, 678 (D.C. Cir. 2000) (quoting Vinyl Chloride, 824

F.2d at 1163, and citing numerous cases). This common-

sense presumption also finds expression in President

Clinton's Executive Order requiring every agency to “assess

both the costs and the benefits of the intended regulation and,

recognizing that some costs and benefits are difficult to

quantify, propose or adopt a regulation only upon a reasoned

determination that the benefits of the intended regulation

justify its costs.” Exec. Order No. 12,866, § 1(b)(6) (Sept.

30, 1993).

Lead Industries, decided five days before Benzene,

concluded that EPA could not consider cost, feasibility, or

whether substances are “clearly harmful” because Congress

had “subordinate[d] such concerns to the achievement of

health goals.” 647 F.2d at 1149. But this is a false

dichotomy. It ignores this Court’s caution that “it frustrates

rather than effectuates legislative intent simplistically to—

assume that whatever furthers the statute’s primary objective

must be the law.” Rodriguez, 480 U.S. at 526. There is

nothing inconsistent in declaring health protection to be the

overriding objective but declining to “pursufe] [that]

purpose{ | at all costs.” Jd. at 525-26.

Similarly, recognizing the Act’s “technology-forcing”

character, see Lead Industries, 647 F.2d at 1149, does not

compel the conclusion that technology must be “forced”

even where doing so will “impose enormous costs that might

produce little, if any, discernible benefit.” Benzene, 447 U.S.

11

at 645 (plurality opinion). This Court’s decision in Motor

Vehicle Mfrs. Ass'n v. State Farm Mut. Automobile Ins. Co.,

463 U.S. 29 (1983), makes this point clear. The Motor

Vehicle Safety Act identifies “safety to be the preeminent

factor,” id. at 55, and requires “technology-forcing” safety

standards, id. at 49. Nonetheless, the Court did not perceive

any inconsistency in making safety the primary goal but

forswearing absolutism and unreason in pursuit of that goal.

The Court reiterated that “‘safety is the paramount

purpose,”” but expressly “‘recognize{d] . . . that the Secretary

will necessarily consider reasonableness of cost, feasibility

and uate leadtime.’” /d. at 55 (quoting S. Rep. No.

1301, 89" Cong., 2d Sess. at 6 (1966)).

* Nothing in this Court’s decision in American Textile Mfrs. Inst., Inc. v.

Donovan, 452 U.S. 490 (1981) (“Cotton Dust”), contradicts the

presumption that an agency should be permitted to consider cost and

feasibility unless prohibited by the statute. In Cotton Dust, the Court

held only that OSHA was not required to balance costs and benefits. The

language when intending that an agency engage in cost-benefit

The Court made clear, however, that Congress need not use

any “specific language” to permit an agency to engage in cost-benefit

12

Il. THE CLEAN AIR ACT, AS CONSTRUED BY EPA,

CANNOT BE SQUARED WITH THE NON-

DELEGATION DOCTRINE

A. Despite the Difficulty of Applying It, the Non-

Delegation Doctrine Remains an Important

Constitutional Principle

The governing test for unconstitutional delegations has

remained constant since at least 1928. Congress cannot

delegate rulemaking authority to an agency if it fails to “lay

down by legislative act an intelligible principle to which the

person or body authorized to [act] is directed to conform.”

J.W. Hampton, Jr. & Co. v. United States, 276 U.S. 394, 409

(1928). After twice striking down congressional acts as

unconstitutional delegations in 1935, see A.L.A. Schechter

Poultry Corp. v. United States, 295 U.S. 495 (1935);

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

Court has sustained a variety of broad delegations of

rulemaking authority as providing the requisite “intelligible

principles.” As examples, the Court has approved directions

to agencies to set prices that are “fair and equitable,” Yakus

v. United States, 321 U.S. 414, 420 (1944), and rates that are

“just and reasonable,” Federal Power Comm'n v. Hope

Natural Gas Co., 320 U.S. 591, 600-01 (1944), and to grant

broadcast licenses in the “public interest,” National

Broadcasting Co. v. United States, 319 U.S. 190, 225 (1943).

In more recent cases, the Court has used the broad

standards approved in these earlier cases as a permissive

yardstick to measure and approve grants of substantial

discretion. In Mistretta v. United States, 488 U.S. 361, 374

(1989), for example, the Court observed: “In light of our

approval of these broad delegations, we harbor no doubt that

Congress’ delegation of authority to the Sentencing

Commission is sufficiently specific and detailed to meet

constitutional requirements.” Likewise, in Touby v. United

13

States, 500 U.S. 160, 165 (1991), the Court concluded that,

“[ijn light of these precedents, one cannot plausibly argue

that § 201(h)’s ‘imminent hazard to the public safety’

standard is not an intelligible principle.” Indeed, at least one

Justice has expressed doubt that any statute could fail to

provide an intelligible principle in light of the Court’s

approval of the “public interest” standard. See, e.g.,

Mistretta, 488 U.S. at 416 (Scalia, J., dissenting).

Although the test the Court employs to identify

unconstitutional delegations provides Congress with

considerable latitude, the Court never has doubted the

continuing vitality of the important constitutional principles

reflected in the non-delegation doctrine. The doctrine

reflects the fundamental requirement of our Constitution that

all legislative power must be exercised by Congress. See

U.S. Const., Art. I, § 1. There is no gainsaying the

importance of this requirement. As Justice Scalia put the

point in the first section of his Mistretta dissent (in which he

“fully agreed” with the Court’s rejection of the challenge to

the breadth, as opposed to destination, of the delegation): “It

is difficult to imagine a principle more essential to

democratic government than that upon which the doctrine of

unconstitutional delegation is founded.” /d. at 415.

Accordingly, the deferential nature of the Court’s non-

delegation test stems not from any skepticism about the

importance of the constitutional values reflected in the

doctrine, but rather from the difficulty of encapsulating those

values in an easily administrable test. “[W)hile the doctrine

of unconstitutional delegations is unquestionably a

fundamental element of our constitutional system, it is not an

element readily enforceable by the courts.” /d.’

* Despite the difficulty of drawing easily administrable lines in this area,

many courts continue to enforce non-delegation principles found in State

constitutions. See, e.g., Guillou v. State Div. of Motor Vehicles, 503

A.2d 838, 841 (N.H. 1986) (unanimously striking down statute as

“sufficiently vague and indefinite to amount to an unconstitutional

14

B. EPA’s Construction of the Act Raises a

Distinct Non-Delegation Problem From That

Typically Considered by This Court

This case involves a non-delegation problem that is

distinct from that raised and rejected in numerous cases since

1935. This Court’s non-delegation cases all have involved

claims that Congress failed to provide the agency with

sufficient direction. These cases essentially alleged errors of

omission. By authorizing agencies to regulate “in the public

interest” or to set “just and reasonable” rates, Congress failed

to constrain agency discretion with “intelligible principles,”

or so the argument has gone.’ This case is different. The

fundamental problem here is not that Congress failed to give

EPA any direction in setting NAAQS, although it gave

precious little. Rather, the non-delegation defect here is that

the statute, at least as interpreted by EPA and the court

below, affirmatively precludes EPA from employing tools

that are necessary to convert the broad statutory standards

into “intelligible principles.” In short, this case involves an

error of commission.

It is one thing for Congress to grant an agency broad

authority to set “fair and equitable” prices or “just and

reasonable” rates. This Court repeatedly has approved such

grants of authority despite their breadth. See, e.g., Yakus,

supra; Hope Natural Gas, supra. However, part of the

reason such broad grants do not deprive agencies of

“intelligible principles” is that the context of the statute

makes clear that the agency must balance the interests of the

concerned parties, and the agency possesses certain obvious

tools to balance those interests. For example, in setting

prices and rates, agencies necessarily must balance the

interests of consumers and suppliers. See, e.g., Hope

delegation of legislative authority”); see generally Gary J. Greco,

Standards or Safeguards: A Survey of the Delegation Doctrine in the

States, 8 Admin. L. J. Am. U. 567 (1994). —

15

Natural Gas, 320 U.S. at 603 (“The rate-making process

under the Act, i.e., the fixing of ‘just and reasonable’ rates,

involves a balancing of the investor and the consumer

interests.”). Moreover, the costs of providing the service

provide a critical reference point for striking this balance.

See, e.g., Sunshine Anthracite Coal Co. v. Adkins, 310 U.S.

381, 397 (1940) (minimum and maximum coal prices fixed

by reference to measures of cost); JCC v. Goodrich Transit

Co., 224 U.S. 194, 211 (1912) (ICC must have access to

carriers’ cost and financial information “to successfully

perform its duties in respect to reasonable rates”). These

same basic trade-offs remain central, and costs retain their

importance, whether the agency is tasked with regulating the

prices of commodities during wartime or the rates for

railroads or natural gas during peacetime.

Accordingly, it would be quite a different matter if

Congress were to delegate broad authority to set “fair and

equitable” prices or “just and reasonable” rates, but

affirmatively specify that the agency could not take into

account the costs of supplying the service or the interests of

suppliers. By prohibiting reference to costs or the interests

of suppliers, the statute would deprive the agency of any

meaningful basis for setting a price above zero. The agency

always could justify setting the “just and reasonable” rate a

little bit lower. The exact point above zero where the agency

chose to stop would be the product of agency whim, rather

than an intelligible principle laid down by Congress.

Although the grant of authority to set “just and

reasonable” rates itself does not fail to provide intelligible

principles, the prohibition on the consideration of costs or

the interests of suppliers would deprive the standard of any

intelligible content. Such a statute would involve an error of

commission, not omission. Congress cannot grant an agency

such broad authority and simultaneously deny it the ability to

use the regulatory tools necessary to give that broad standard

meaningful content. In other words, Congress cannot grant

16

an agency broad authority to regulate and then force the

agency to ignore half the regulatory equation.

By the same token, Congress presumably could give

EPA broad authority to set NAAQS to avoid adverse health

effects from pollutants without violating this Court’s non-

delegation precedents. The common-sense need to balance

benefits and costs to avoid pressing regulation to the point of

unreason, see, e.g., Exec. Order No. 12,866, § 1(b)(6) (Sept.

30, 1993), would help to inform an otherwise broad

delegation of authority. However, if Congress granted EPA

broad authority to set health-protecting standards for non-

threshold pollutants, and then affirmatively precluded EPA

from considering economic impact, the significance of the

health risks, or any factor on the other side of the equation,

the resulting statute would raise serious non-delegation

problems.

If faced with such a statute, EPA would have no

meaningful basis for selecting any NAAQS above a zero-

tolerance level (which is zero, for a non-threshold pollutant).

If economic impact, technological and economic feasibility,

and the interests of industry more generally all were off

limits, EPA would have recourse to no limiting principle to

identify a stopping point. EPA always could justify setting

the permissible level a little lower to achieve a little more

health protection. Just as in the rate-setting hypothetical

discussed above, with no countervailing consideration to

weigh against each marginal increase in health protection,

EPA’s decision as to which non-zero level to pick would be

a product of whim, rather than i. telligible principles.

As interpreted by EPA and the D.C. Circuit since Lead

Industries, § 109(b)(1) comes perilously close to the

unconstitutional statute described above. The D.C. Circuit

interprets the Act to preclude EPA from conducting cost-

benefit analysis or otherwise considering the costs imposed

on industry or the feasibility of compliance. See U.S. Pet.

App. 14a-15a. Indeed, the D.C. Circuit does not even

17

recognize a “significance” requirement that at least would

limit EPA to protecting against health effects that are

“clearly harmful,” see Lead Industries, 647 F.2d at 1154-55,

and EPA specifically opposed a significant-risk limitation

akin to that adopted by this Court in Benzene.'® At the same

time, it is clear that neither Congress nor EPA has any desire

to demand zero tolerance. Such a result would avoid a

delegation problem at the expense of outlawing industry.

See U.S. Pet. App. 15a.

Accordingly, it is clear that Congress intended EPA to

set NAAQS that are protective of health while permitting

some non-zero level of pollution (and therefore some non-

zero risk to health). However, if EPA cannot consider

countervailing costs to industry, the feasibility of attaining

compliance, and the significance of the health risks, then the

statute provides EPA with no intelligible principle to set any

particular NAAQS.

For its part, EPA candidly admitted its free reign over the

standard-setting process. EPA conceded that it followed “no

generalized paradigm” and that its decisions “may not be

amenable to quantification in terms of what risk is

‘acceptable’ or any other metric.” 62 Fed. Reg. 38,856,

38,883 (1997).'' By openly admitting that it was free to

'° In the court below, EPA argued that the Act forecloses “a ‘test’ under

which the Administrator must first make a finding that the existing

standard permits a ‘significant risk of harm’ to public health, and then

demonstrate that the revised standard is ‘needed to improve demonstrably

the overall public health.”” See EPA Ozone Br. at 42.

'' EPA also viewed itself as not bound by reliability requirements for

scientific evidence, such as those announced in Daubert v. Merrell Dow

Pharmaceuticals, Inc., 509 U.S. 579 (1993), and its progeny. Some

commentators suggest that this failure constitutes an additional ground

for rejecting EPA’s decisions under the APA. See Charles D. Weller &

David B. Graham, New Approaches to Environmental Law and Agency

Regulation: The Daubert Litigation Approach, 30 Envtl. L. Rep. 10557,

10569 (2000).

18

ignore all apparent limiting principles, EPA practically dared

the court below to find an unconstitutional delegation.

Importantly, EPA’s virtually unfettered discretion stems

from the interpretation of the Act to preclude EPA from

considering economic impact or employing other tools that

would cabin its discretion, not from a failure by Congress to

provide sufficient guidance in its original grant of authority.

It is a non-delegation error of commission, not omission.

Moreever, this error of commission is not inherent in the

statute. As demonstrated in Section I, supra, the relevant

statutory text neither necessarily nor obviously precludes the

consideration of economic impact. To the contrary, the plain

text of the statute is compatible with a construction that

permits EPA to consider the significance of health risks in

relation to the costs of compliance, and a presumption

allowing agencies to consider such costs makes sense. See

Stephen G. Breyer & Richard B. Stewart, ADMINISTRATIVE

LAW AND REGULATORY POLICY 350 (3d ed. 1992) (“How

can the significance of a risk be determined in isolation from

the cost of eliminating the risk?”). In addition, as

demonstrated in Section III, infra, to the extent there is

ambiguity in the statutory text, this Court should require

EPA to take costs, feasibility, and the significance of health

risks into account. If the statute can be read either to

exacerbate or avoid delegation problems, both constitutional

values underlying the non-delegation doctrine and general

principles of constitutional avoidance require the courts (not

the agency) to interpret the statute to avoid delegation

problems.

+")

19

lil. THE COURT CAN AVOID NON-DELEGATION

DIFFICULTIES BY INTERPRETING THE ACT

TO REQUIRE CONSIDERATION OF COSTS,

FEASIBILITY, AND SIGNIFICANCE

This Court should apply Ashwander principles of

constitutional avoidance, see Ashwander v. Tennessee Valley

Auth., 297 U.S. 288, 346-48 (1936) (Brandeis, J.,

concurring), to interpret the Clean Air Act to avoid the

delegation problems created by EPA’s construction. In

particular, the Court should use Ashwander and the

constitutional values underlying the non-delegation doctrine

to fashion a clear statement rule. Unless Congress makes its

intent unmistakably clear, a court should not interpret a grant

of regulatory authority to preclude the agency from

considering one half of the relevant regulatory equation. In

the context of environmental regulation, courts should

require Congress to speak with unmistakable clarity if it

intends to preclude the consideration of economic impact.

Likewise, in the context of rate or price regulation, an intent

to preclude the consideration of supply costs would need to

be unmistakable.

These clear statement rules would serve both general

interests in constitutional avoidance and the specific values

underlying the non-delegation doctrine. Importantly, courts

should apply these Ashwander and clear statement principles

before moving to the second step of the Chevron analysis.

The contrary approach of the court below, which would vest

the primary responsibility for avoiding unconstitutional

delegations in the agency, conflicts with the underlying

purpose of the non-delegation doctrine.

20

A. The Non-Delegation Doctrine Is Well-Suited For

Use as a Tool to Avoid Constitutionally Suspect

Interpretations of Statutes

As noted in Section II, supra, the non-delegation doctrine

remains an important constitutional principle, despite the

Court’s difficulty in formulating a workable test for

identifying unconstitutional delegations. No Justice has

expressed any doubts about the constitutional basis for the

doctrine or suggested that the Court should ignore delegation

concerns. To the contrary, the Court has taken delegation

issues __ seriously. The paucity of cases finding

unconstitutional delegations stems not from skepticism over

the non-delegation doctrine’s bona fides, but from the

difficulty of encapsulating the doctrine in a test that is

“readily enforceable by the courts.” Mistretta, 488 U.S. at

415 (Scalia, J., dissenting). |

This Court has long recognized that the line between

permissible delegations of discretion and unconstitutional

delegations of legislative authority “has not been exactly

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

(1825). Chief Justice Marshall, writing for the Court in

Wayman, noted that “there is some difficulty in discerning

the exact limits within which the legislature may avail itself

of the agency of” others in fulfilling legislative commands.

Id. at 46. Although “the maker of the law may commit

something to the discretion of the other departments, . . . the

precise boundary of this power is a subject of delicate and

difficult inquiry, into which a Court will not enter

unnecessarily.” Jd.

However, the “difficulty in discerning the exact limits”

and “precise boundary” of permissible delegation does not

mean that the Court needs to abandon the non-delegation

doctrine as an interpretive principle. The Court recognized

as much in Mistretta. While emphasizing that it repeatedly

had upheld “Congress’ ability to delegate power under broad

21

standards,” the Court noted that it had employed the non-

delegation doctrine in “the interpretation of statutory texts,

and, more particularly, to giv[e] narrow constructions to

statutory delegations that might otherwise be thought to be

unconstitutional.” 488 U.S. at 373 & n.7.

Indeed, the difficulty in fashioning a clear test to identify

unconstitutional delegations and the sensitive separation of

powers concerns implicated by the non-delegation doctrine

make it particularly well-suited to application as an aid in

statutory construction. Striking down a statute as an

unconstitutional delegation requires the courts to declare an

act beyond the power of Congress. Courts,. which are

generally reluctant to take this extreme step, are all the more

hesitant when equipped only with a test that has proven

difficult to apply. As Chief Justice Marshall summarized,

the non-delegation doctrine “is a subject of delicate and

difficult inquiry, into which a court will not enter

unnecessarily.” Wayman, 10 Wheat. at 46. The use of

Ashwander and clear statement principles makes sense in the

non-delegation context precisely because they allow the

courts to avoid engaging in a “delicate and difficult inquiry

... unnecessarily.”

This Court adopted a clear statement principle to avoid a

similarly “delicate and difficult inquiry” in Gregory v.

Ashcroft, 501 U.S. 452 (1991). In Garcia v. San Antonio

Metro. Transit Auth., 469 U.S. 528, 546 (1985), the Court

concluded that the Tenth Amendment does not lend itself to

judicial enforcement both because the text does not suggest

any clear rules and because the political branches are well-

placed to address concerns over federal and state relations.

In Ashcroft, this Court recognized that it was “constrained in

[its] ability to consider the limits that the state-federal

balance places on Congress’ powers under the Commerce

Clause.” 501 U.S. at 546 (citing Garcia). Nonetheless,

despite the established limits on its ability to play a primary

role in enforcing the Tenth Amendment, the Court staked out

22

an important complementary role in promoting the

underlying values of the Tenth Amendment by adopting a

clear statement rule.

The clear statement rule served two purposes. Not only

did it help “avoid a potential constitutional problem,” but it

ensured that Congress would be put on notice when

considering legislation that implicated state prerogatives. '?

Id.; see also United States v. Bass, 404 U.S. 336, 349 (1971)

(“In traditionally sensitive areas, such as legislation affecting

the federal balance, the requirement of a clear statement

assures that the legislature has in fact faced, and intended to

bring into jssue, the critical matters involved in the judicial

decision.”). A clear statement rule could play the same twin

roles in the non-delegation context. Such a rule would avoid

potential constitutional difficulties and ensure that Congress

thoroughly considers substantial delegations of discretion

and the implications of precluding agencies from using tools

that would help cabin that discretion.

In addition, application of Ashwander and clear

statement principles advances the underlying values of the

'? Generally, Ashwander principles are triggered when one interpretation

of a statute raises “serious doubt” about its constitutionality. See, e.g.,

International Ass'n of Machinists v. Street, 367 U.S. 740, 749 (1961).

However, in the context of constitutional provisions that do not readily

lend themselves to judicial enforcement, like the Tenth Amendment or

the non-delegation doctrine, the trigger for the application of Ashwander

must be the conviction that serious constitutional issues are implicated,

not “serious doubt” about the ultimate constitutional question. Ashcroft

makes this point clear. Even though the Court recognized that Garcia

virtually foreclosed a successful Tenth Amendment challenge, the Court

applied the clear statement rule to “avoid a potential constitutional

problem.” See 501 U.S. at 464.

' Indeed, a clear statement rule for delegations is easier to justify than

the rule adopted in Ashcroft. Garcia rejected the governing Tenth

Amendment test as “unsound in principle and unworkable in practice.”

469 U.S. at 546. In contrast, the Court never has questioned the

soundness of the non-delegation doctrine.

23

non-delegation doctrine. The fundamental purpose of the

doctrine is to promote legislative accountability by ensuring

that the people’s elected representatives in Congress alone

exercise the legislative power. A clear statement rule for

questionable delegations likewise promotes legislative

accountability. It ensures that Congress actually considers

whether to grant discretion to administrative agencies, with

the result that any discretion granted to agencies will reflect

Congress’ conscious exercise of its legislative authority.

Indeed, so clear is the link between Ashwander and the

non-delegation doctrine that some commentators have

suggested that the application of Ashwander to agency

interpretations of statutes in general reflects the values of the

non-delegation doctrine. See, eg., Cass Sunstein,

Nondelegation Canons, 67 U. Chi. L. Rev. 315, 331-32

(2000); Cass Sunstein, Js the Clean Air Aet

Unconstitutional?, 98 Mich. L. Rev. 303, 358 (1999). In

other words, courts are reluctant to allow agencies to

interpret statutes to apply extraterritorially or to implicate

rights across the constitutional spectrum precisely because

Congress should not be presumed to delegate such delicate

legislative issues unless its intent is unmistakably clear. This

Court made a similar point in Greene v. McElroy, 360 U.S.

474, 507 (1959): “Without explicit action by lawmakers,

decisions of great constitutional import and effect would be

relegated by default to administrators who, under our system

of government, are not endowed with authority to decide

them.”

In sum, application of the non-delegation doctrine as an

Ashwander or clear statement principle avoids the difficulties

raised by direct enforcement of the doctrine while at the

same time ensuring that the important constitutional values

underlying the doctrine are not discarded. Even if the non-

delegation doctrine does not lend itself to a “readily

enforceable” test for striking down acts of Congress, courts

24

face little institutional difficulty in identifying the

construction of a statute that avoids delegation problems.

B. This Court Consistently Has Applied Non-

Delegation Principles as an Aid to Statutory

Construction

One clear example of this Court’s use of the non-

delegation doctrine as an Ashwander principle is National

Cable Television Ass'n, Inc. v. United States, 415 U.S. 336

(1974) (“NCTA”). The statute at issue there authorized the

FCC to set fees that were “fair and equitable taking into

consideration direct and indirect cost to the government,

value to the recipient, public policy or interest served, and

other pertinent facts.” See id. at 337. The Court expressed

concern that allowing the FCC to set fees that reflected its

view of “public policy” would risk permitting an

unconstitutional delegation of Congress’ taxing authority.

See id. at 342-44. To avoid this possibility, the Court

interpreted the statute to allow fees to be set only with

reference to the “value to the recipient.” See id. at 344. The

Court expressly invoked the non-delegation doctrine to

narrow the statute: “Whether the present Act meets the

requirement of Schechter and Hampton is a question we do

not reach. But the hurdles revealed in those decisions lead

us to read the Act narrowly to avoid constitutional

problems.” /d. at 342.

The Court likewise invoked the non-delegation doctrine

in Kent v. Dulles, 357 U.S. 116 (1958), to preclude the

Secretary of State from denying passports to certain

individuals despite Congress’ grant of broad authority to

“grant and issue passports . . . under such rules as the

President shall designate and prescribe.” See id. at 129. The

decision is particularly noteworthy because the Court

invoked non-delegation principles in the foreign affairs

25

context, where executive discretion reaches its zenith. See,

é.g., Clinton v. City of New York, 524 U.S. 417, 445 (1998).

Similarly, a plurality of this Court in Benzene employed

the non-delegation doctrine to find a statutory requirement

that health risks be significant. Even though the statute

imposed an express “feasibility” constraint, the plurality

observed that unless OSHA also was limited to targeting

risks that were “significant,” “the statute would make such a

“sweeping delegation of legislative power’ that it might be

unconstitutional under the Court’s reasoning in” Schechter

and Panama Refining. See 448 U.S. at 646. The plurality

recognized that “[a] construction of the statute that avoids

- kind of open-ended grant should certainly be favored.”

Although these cases predate Chevron, the application of

constitutional avoidance principles to narrow potentially

excessive grants of discretion is a task for the courts, not the

agency. In other words, courts must apply the non-

delegation doctrine as an aid to statutory construction before

moving to the more deferential step two of the Chevron

analysis. As a general matter, this Court has made clear that

courts should apply Ashwander principles before moving to

step two. For example, in Edward J. DeBartolo Corp. v.

Florida Gulf Coast Building & Constr. Trades Council, 485

US. 568 (1988), the Court rejected the NLRB’s

interpretation of a statute to preclude peaceful handbilling in

a shopping mall. The Court made clear that the NLRB’s

construction “would normally be entitled to deference” under

Chevron. Id. at 574. Nonetheless, the Court rejected the

interpretation because it “pose[d] serious questions of the

validity of [the statute] under the First Amendment.” /d. at

575; see also NLRB v. The Catholic Bishop of Chicago, 440

USS. : 490 (1979) (applying constitutional avoidance

principles to invalidate the NLRB’s interpretation of a statute

pre-Chevron).

26

Obviously, neither Ashwander nor Chevron has any

application when a statute is completely unambiguous and

subject to only a single construction. Cf Miller v. French,

120 S. Ct. 2246, _, Slip Op. at 5-6 (June 19, 2000).

However, when a statute is subject to more than one

construction, Ashwander favors the construction that avoids

constitutional difficulties while Chevron favors the

construction adopted by the agency. When the agency fails

to adopt the construction of an ambiguous statute that avoids

constitutional difficulties, one of the two principles must

yield. DeBartolo makes clear that Ashwander trumps

Chevron. 485 U.S. at 577 (“Even if this construction of the

Act were thought to be a permissible one, we are quite sure

that in light of the traditional rule followed in Catholic

Bishop, we must independently inquire whether there is

another interpretation, not raising these serious constitutional

concerns, that may fairly be ascribed to [the statute].”).

Accord Chamber of Commerce v. Federal Election Comm'n,

69 F.3d 600, 605 (D.C. Cir. 1995); Bell Atlantic Tel. Co. v.

FCC, 24 F.3d 1441, 1445 (D.C. Cir. 1994); of Ashcroft,

supra (applying clear statement rule despite dissent’s

suggestion that the Court should defer to the agency’s

interpretation under Chevron).

The need to employ constitutional avoidance principles

before deferring to agency constructions of statutes applies

with special force in the non-delegation context. Excessive

agency discretion is the very evil against which the non-

delegation doctrine guards. To defer to an agency

construction of an ambiguous statute that would expand

agency discretion to the point of raising constitutional doubts

would turn the non-delegation doctrine on its head.

Although the court below correctly recognized that

EPA’s construction of the statute raised non-delegation

problems, it erred by remanding for the agency to identify a

narrowing construction of the statute. The court reached this

result by mistakenly concluding that the constitutional

27

avoidance “approach of the Benzene case . . . has given way

to the approach of Chevron.” See U.S. Pet. App. 76a. This

observation simply ignores the teaching of DeBartolo that

Ashwander principles trump Chevron deference. Equally

important, the methodology of the court below would

frustrate the underlying purpose of the non-delegation

doctrine by giving agencies additional discretion to interpret

grants of legislative authority that already are troublingly

broad. See, e.g., id. at 94a-95a (Silberman, J., dissenting

from denial of rehearing en banc) (“It hardly serves — indeed,

it contravenes — that purpose to demand that EPA in effect

draft a different, narrower version of the Clean Air Act.”).

This Court recognized as much in rejecting the agencies’

broad constructions of their delegated authority in NCTA,

Kent, and Benzene. Nothing in Chevron alters the wisdom of

that approach.

C. The Non-Delegation Problems Raised by EPA’s

Suggested Interpretation of the Clean Air Act

Doom That Construction of the Act

EPA’s construction of § 109(b)(1) clearly implicates

non-delegation principles. As explained in Section II, supra,

EPA’s construction deems Congress affirmatively to have

deprived EPA of the necessary means to set NAAQS

pursuant to intelligible principles. By forbidding EPA from

considermg feasibility and costs and dismissing certain

health risks as insignificant, the Act, as interpreted by EPA,

defies rational application.

However, the Act need not be construed to deny EPA the

necessary tools for its rational application. Nothing in the

Statutory text prohibits the consideration of economic

impact, feasibility, and the significance of health risks. Even

if the decision to employ such tools otherwise might be left

to agency discretion, Ashwander trumps Chevron and

requires rejecting an interpretation that unnecessarily raises

28

constitutional ‘issues. Accordingly, the Court should

interpret the Act to require EPA to consider these limiting

principles in setting NAAQS.

It certainly does no violence to the Act to interpret it to

require the consideration of the costs and feasibility of

compliance and the significance of risks. Indeed, such an

interpretation is far more faithful to the statutory text than

the saving constructions previously adopted by this Court to

avoid potential delegation problems. For example, in NCTA,

the Court read a provision authorizing fees that were “fair

and equitable taking into consideration direct and indirect

cost to the Government, value to the recipient, public policy

or interest served, and other pertinent facts,” see 415 U.S. at

337, to permit fees that were “fair and equitable taking into

consideration” the “value to the recipient” and nothing else.

See id. at 342-44. The Court’s saving construction

necessitated reading sixteen words out of the statute.

In Kent, the Court’s saving construction required reading

words into, rather than out of the statute. Although Congress

gave the Secretary of State the unqualified power to “grant

and issue passports . . . under such rules as the President

shall designate and prescribe,” see 357 U.S. at 123, the Court

wrote in a qualification that denied the Secretary authority to

withhold passports based on citizens’ political activities.

See id. at 129.

In contrast to these permissible saving constructions,

requiring EPA to consider compliance costs, feasibility, and

the significance of health risks fully comports with the text

of the Clean Air Act. It does not require reading any words

into or out of the statute. It simply requires reading the Act

in light of customary, background principles of regulatory

analysis.

Indeed, in the context of the particular non-delegation

problem raised by EPA’s construction — a non-delegation

error of commission — this Court should employ a clear

statement requirement. Before finding that Congress

29

arguably has created a non-delegation problem by restricting

the agency from employing the regulatory tools necessary to

interpret the statute pursuant to intelligible principles, courts

should demand that Congress make that intent unmistakably

clear. Economic impact, the significance of risks, and the

costs and feasibility of providing regulated services are basic

building blocks of rational regulation. Courts should not

See eee Se Canes Se ae ee ea ee

le.

This clear statement rule makes sense both as a

predictive matter and as an application of principles of

constitutional avoidance. It makes little sense to assume that

Congress would direct an agency to ignore half of the key

regulatory equation, and doing so risks creating serious non-

delegation problems. In a case like this, where Congress has

not come close to expressing a clear intent to foreclose the

consideration of economic impact, feasibility, and the

significance of risks, courts should reject such counter-

intuitive and constitutionally problematic interpretations.

Whether this Court applies general principles of

constitutional avoidance or the clear statement principles

suggested above, it should reject EPA’s construction of the

Clean Air Act. EPA’s refusal to consider compliance costs,

feasibility, and the significance of health risks unnecessarily

deprives the agency of the intelligible principles necessary

for rational application of the statute. EPA’s construction

risks unconstitutional results that simply do not inhere in §

109(b)(1) as written. This Court should reject EPA’s

position and construe the Act to require EPA to consider

economic impact, feasibility, and the significance of risks.

30

CONCLUSION

For the foregoing reasons, the Court should reject EPA’s

construction of the Clean Air Act and remand the case to

EPA with directions to reformulate the NAAQS in light of

intelligible principles.

Respectfully submitted.

Daniel J. Popeo Paul D. Clement

Paul D. Kamenar Counsel of Record

Washington Legal Foundation Jeffrey S. Bucholtz

2009 Massachusetts Ave., N.W. King & Spalding

Washington, D.C. 20036 1730 Pennsylvania

(202) 588-0302 Avenue, N.W.

Washington, D.C. 20006

(202) 737-0500

July 21, 2000 Counsel for Amici Curiae