JurisdictionUnited States
Natural Resources & Environmental Administrative Law and Procedure
(Nov 1999)


Sandra B. Zellmer
University of Toledo College of Law
Toledo, Ohio

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More than half a century has passed since "The New Deal", an era known for ushering in a raft of social legislation and a new regulatory state, where extensive powers were delegated to more than a dozen new executive agencies. During the early years of the New Deal, courts were suspicious of regulatory legislation, or, for that matter, any legislation that upset the common law systems supporting private property interests and freedom of contract. Regulatory legislation was especially vulnerable to invalidation for delegating legislative authority to an executive agency, a constitutional offense under separation of powers principles.

Since the New Deal, however, the "nondelegation" doctrine has been, for all practical purposes, a dead letter, and the courts have barely questioned even the most broad-sweeping delegations to federal agencies. Instead, the delegation of complex regulatory details to executive agencies, far from impairing the constitutional prerogatives of Congress, is generally recognized as promoting efficient and effective government. So long as Congress provides some legislative standards, along with procedural safeguards, including judicial review, delegations have not triggered constitutional concerns.

Yet just this year, in American Trucking Association v. U.S. Environmental Protection Agency,2 the U.S. Court of Appeals for the D.C. Circuit opened a new chapter in administrative law by holding that national ambient air quality standards (NAAQS), issued pursuant to the Clean Air Act, violated the nondelegation doctrine. According to the court, the EPA had overstepped its constitutional boundaries by venturing into legislative prerogatives, even though it had considered a full range of data regarding the level "requisite to protect public health" with an "adequate margin of safety," as directed by the Act.

This article explores the nondelegation doctrine and its underpinnings, and finds that the concerns expressed in American Trucking are unfounded. Moreover, even if the NAAQS were inappropriate, the court's concerns could be addressed more effectively without reaching the constitutional issue. The restoration of the "hard look" standard of judicial review would do more towards holding the three branches of government to their constitutional duties, and requiring agencies to make rational decisions based on intelligible principles. The article concludes that, in any event, nondelegation should not become a significant restraint on the exercise of discretion by federal agencies in charge of environmental programs.

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I. The Role of Administrative Agencies Within the Constitutional and Legislative Framework

The United States Constitution contains no explicit authority to create and delegate powers to administrative agencies. Instead, agencies evolved out of necessity — the constitutionally created branches needed "agents" to perform the vast amount of detail work required to operate a modern society. Agencies were created by each branch to, inter alia, oversee federal programs, conduct investigations, and fill in the gaps left by broad-brush legislation.3 Congress, for example, is able to concentrate on its primary lawmaking duties by delegating power to non-legislative branch entities.4

Because agencies are simply agents, their powers flow from, and are subsidiary to, the branch that created them. Accordingly, agency action must be authorized by statute and consistent with the Constitution. The "organic act" that creates an executive agency and delegates power to it, along with subsequent enactments providing more detailed direction in specified contexts, set the parameters of the agency's power by providing legislative goals, policies and standards.

In the natural resources arena, the Department of Agriculture's Forest Service is instructed by its organic acts to manage forest reserves using multiple use-sustained yield principles.5 Within the Department of Interior, the National Park Service Organic Act directs the Park Service to preserve and protect parks "and the wildlife such means as will leave them unimpaired for the enjoyment of future generations."6 The Bureau of Land Management (BLM) operates under a variety of statutes,7 but its general marching orders are found in the Federal Land Policy and Management Act.8 Similarly, the Fish and Wildlife Service derives its authorities from several different statutes, most

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importantly, the Endangered Species Act (ESA) of 19739 and the National Wildlife Refuge System Act.10

The Environmental Protection Agency, charged with pollution control, has no true organic act. Unlike agencies found in cabinet-level departments, the EPA was created not by legislation but by executive order.11 It conducts its affairs according to a variety of statutes scattered throughout the United States Code, including the Clean Water Act (CWA),12 Clean Air Act (CAA),13 Toxic Substances Control Act,14 and the Comprehensive Environmental Response, Compensation and Liability Act (CERCLA, or Superfund).15 EPA's programs and initiatives are sometimes criticized as piecemeal and reactionary, with no unifying principle.16 The lack of an organic act likely contributes to this fragmentation.

Intuitively, it seems that an agency with a precise and specific organic act would be perceived as more accountable and be given more deference by courts, so long as it acts within its congressional mandate. It follows, then, that such agencies would be less susceptible to a nondelegation problem than agencies that operate under broadly phrased statutory missions and directives. This may not be so, however. Professor Cass Sunstein, having executed a survey of various agencies and their organic acts, concludes that the perception of agencies operating under open-ended mandates ranges from great respect for the Securities and Exchange Commission, to near-contempt for the former Interstate Commerce Commission.17 Meanwhile, "the Department of Agriculture is one of the least well-regarded agencies, and the statutes it administers are frequently all too clear," while

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the Internal Revenue Service is "highly regarded."18 "In short, there seems to be no link between clear statutory terms and agency competence or agency contribution to social well-being."19

II. The "Evils" of Delegation: The Broader the Discretion, the More Suspect the Statute and the Agency's Execution of the Statute

A. Separation of Powers, Laissez-faire Capitalism and Nondelegation

As anyone who ever watched Schoolhouse Rock knows, the United States government is divided into three branches.20 The Constitution specifically provides that "[a]ll legislative powers . . . shall be vested in a Congress of the United States...."21 Legislative power is the power to make laws of general applicability.22 Meanwhile, executive power — the power to enforce the law — is held by the President,23 and the power to review the activities of the other two branches, in the context of cases or controversies, is vested in the judiciary.24

A primary reason for the constitutional separation of powers between the legislative, executive and judicial branches is to provide checks and balances against the capture of any one branch by another.25 Separation of powers deters government

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excesses through arbitrary or tyrannical rule, promotes accountability, and protects individual citizens from factionalism, or manipulation by self-interest groups.26 While the doctrine forbids any branch from interfering with the "central" constitutional prerogatives of another branch,27 it does not require that the legislative, executive and judicial functions "must be entirely separate and distinct."28 For a tripartite government to be "workable", Congress cannot be the only entity allowed to "make a rule of prospective force....'Congress must be permitted to delegate to others at least some authority it could exercise itself.'"29 Thus, Congress frequently legislates its policies and objectives in broad-brush terms, leaving the details of execution to the executive and its agents, with judicial review as a safeguard against abusive or arbitrary action.

Administrative agencies are sometimes characterized, usually in derogatory fashion, as constituting an unauthorized, unconstrained "fourth branch of government."30 One of the primary criticisms of congressional delegations of power to administrative agencies is that such delegations erode the separation of powers among the branches. Agency officials are not elected by the public, and are therefore viewed as less accountable than the legislative branch, yet they frequently wield policy-setting and rule-making authority.31

It is not too surprising, then, that the courts treated regulatory statutes "as foreign substances"32 when they first appeared on the legislative scene around the turn of the century. Laissez-faire principles, undergirding the common law's bias for private rights and private markets, served as the "norm" or baseline for judicial review. Viewed in this light, regulations that protected workers and consumers were nothing but "unprincipled

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interest group transfers."33 Because such transfers were "in derogation of the common law," regulatory statutes were interpreted very narrowly, often defeating the protections offered to the statutory beneficiaries.34 The courts' reaction was consistent with the broader sentiments of the judiciary during the Lochner Era, when redistributive legislation was routinely invalidated as interfering with the freedom to contract and substantive...

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