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

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URL: https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385014_0357%3A25

## Record

- **Collection:** Supreme Court brief
- **Document type:** Amicus Curiae Brief
- **Published:** January 1, 2000
- **Citation:** 530 U.S. 1202

## Text

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

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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......................

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(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

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Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385014_0357%3A25. Public record. Not legal advice.