Federal appellate court revives the nondelegation doctrine in environmental case.

• Author: Covington, Kevin B.
• Position: EPA standards

A fundamental prerequisite for the growth of the federal government in the 20th century has been the ability of Congress to delegate broad powers and duties to agencies in the executive branch. This delegation of power, however, cannot be unbridled; the U.S. Supreme Court has on occasion invalidated acts of Congress for a violation of the "nondelegation" doctrine.(1) While some commentators have declared the nondelegation doctrine to be a dead relic from New Deal era jurisprudence, others have maintained that nondelegation principles are essential to ensure that the basic public policy decisions are made by the elected Congress rather than the less accountable agency administrators.(2) The U.S. Court of Appeals, District of Columbia Circuit, recently reinvigorated this debate with its decision in American Trucking Associations (ATA), Inc., v. EPA, 1999 WL 300618 (D.C. Cir. May 14, 1999). The court remanded two air quality standards back to the U.S. Environmental Protection Agency (EPA), holding that the EPA's interpretation of the Clean Air Act (CAA) in promulgating the two standards would render the CAA unconstitutional for violating the nondelegation doctrine. This opinion was immediately denounced by EPA Administrator Carol Browner before a Senate subcommittee as "extreme, illogical, and bizarre."(3)

To set the stage, the federal CAA directs the EPA to develop and periodically revise National Ambient Air Quality Standards (NAAQS) for air pollutants once the EPA determines that a pollutant may reasonably be anticipated to endanger public health or welfare.(4) A NAAQS must be established at the level of protection which is "requisite to protect the public health" with an "adequate margin of safety."(5) Under the Clinton administration, the EPA has engaged in an aggressive program to strengthen the NAAQS for ozone and particulate matter (PM), and to reduce emissions of precursors to both pollutants. In July 1997, the EPA promulgated a more stringent NAAQS for ozone (the "eight-hour ozone standard") and a new NAAQS for fine particulate matter ([PM.sub.2.5]).(6)In separate actions based in part on these two standards, the EPA recently promulgated a 22-state program for significantly reducing NOx emissions in the eastern U.S. (the "NOx SIP Call") and the Regional Haze Rule which will ultimately further reduce NOx emissions and ambient concentrations of [PM.sub.2.5].(7)

Numerous interests challenged the validity of the eight-hour ozone standard and the [PM.sub.2.5] standard, including electric utilities, industrial interests, a trucking association, and several of the Midwestern states that would bear the brunt of compliance with the NAAQS due to the high level of industrial activity in their states. The EPA, various public interest environmental and health organizations, and several Northeastern states which claim to be receiving pollution from upwind (Midwestern) states defended these NAAQS. Collectively, the petitioners' principal challenge to the NAAQS was to question the validity of the scientific data used to support their promulgation. However, certain small business petitioners also advanced the argument that the EPA had construed [subsections] 108 and 109 of the CAA so broadly as to render them unconstitutional delegations of legislative power.(8)

This "nondelegation" doctrine is rooted in the separation of powers principle that is the basis of our tripartite form of government.(9) It prohibits Congress from delegating its legislative power to another branch of government. However, Congress is free to seek assistance in the performance of its legislative duties so long as it...