Congress Opens the Courthouse Doors: Statutory Changes to Judicial Review Under the Clean Air Act

• Author: Joseph L. Smith
• Published date: 01 March 2005
• Date: 01 March 2005
• DOI: http://doi.org/10.1177/106591290505800113
• Subject Matter: Articles

PRQ_March05_IV 3/24/05 9:21 AM Page 139
Congress Opens the Courthouse Doors:
Statutory Changes to Judicial Review
Under the Clean Air Act
JOSEPH L. SMITH, UNIVERSITY OF ALABAMA
Intervention by the federal courts in regulatory policymaking has increased markedly, in both quantity and level
of intrusiveness, over the last 40 years. Scholarly commentators have concluded that this level of intervention is
not appropriate. This suggests a question: Why are the courts so involved in regulatory policymaking? This arti-
cle answers that question by examining congressional motivation to increase the rights of interested parties to take
their policy battles into court. By analyzing three sets of amendment to the Clean Air Act, I show that members
of Congress strategically manipulate statutory rules governing the role of courts in regulatory policymaking to
help their political supporters and to advance their own policy goals. Thus, a primary explanation of the increased
role of the judiciary in regulatory policymaking is that this increase has served the goals of members of Congress.
Judicial interference in regulatory policymaking has judicial review, Congress can set the level and character of
expanded enormously over the last 40 years, and federal
the judicial role in national policymaking.3
judges have been criticized by political scientists, aca-
The right to go to court is a political resource, and the
demic lawyers, and politicians for overstepping their
setting of these parameters of judicial review is a political
institutional roles (Clayton 1995). Scholarly critics have con-
process. This paper examines a cornerstone of environ-
demned the courts for frustrating agencies’ attempts to make
mental policy, the Clean Air Act, to illustrate congres-
sound policy (Horowitz 1977; Mashaw and Harfst 1990; and
sional manipulation of judicial review provisions. Envi-
Melnick 1983), and for undermining democratic control of
ronmental policy is well-suited to this task for several
policy (Rabkin 1989). An influential analysis of the courts’
reasons. First, it is an area in which extensive judicial
growing role in policymaking (Stewart 1975) characterized
intrusion into policymaking has been especially well
and criticized the expansion as the evolution of courts into
noted (Melnick 1983). Second, the two opposing coali-
substitute or supplementary forums for the assertion of polit-
tions on environmental policy are relatively clear-cut and
ical interests instead of legal rights. All these critics lay the
cohesive. The objects of environmental regulation (those
blame for growth of judicial policymaking primarily at the
businesses and industries whose activities are limited by
feet of judges who have moved beyond their legitimate roles.1
regulatory statutes), allied with anti-regulatory politi-
However, this explanation overlooks the role that Con-
cians, seek to reduce the impact of environmental regula-
gress has played in this process. The thesis of this article is
tion on the economy. The intended beneficiaries of regula-
that Congress has pushed the transformation of administra-
tion (the general public and, more specifically,
tive law by giving more people more rights to take their
environmental interest groups) allied with pro-regulatory
policy disputes into court, and has done so for political rea-
politicians, support policies that will reduce pollution
sons. Congress has the authority to specify who can chal-
and clean up the environment. These two categories,
lenge an agency in court, which court has jurisdiction over
objects and beneficiaries of regulation, overlap signifi-
the case, how much time a litigant has in which to file a law-
cantly with the constituent groups of the Republican and
suit, what types of evidence are admissible, and other
Democratic parties (Shipan and Lowry 2001).
parameters of judicial action.2 Through these parameters of
This study makes several important theoretical points.
First, members of Congress take an interest in these
parameters of judicial review. In each of the three sets of
1 For example, Stewart asserts that this transformation is “largely the hand-
amendments to the Clean Air Act, judicial review provi-
iwork of federal judges” (1975: 1669). See also Melnick (1983: 3-4).
sions were controversial and members of Congress focused
2 Although federal courts are quite independent of Congress when they are
attention on even the details of judicial review. Second, the
interpreting the Constitution, their review of regulatory decisions rarely
involves the Constitution (Shapiro 1988: x). Typically, courts review agency
preferences of members of Congress with regard to param-
action only to determine whether it is consistent with the directions of Con-
eters of judicial review are explained by the members’
gress. When acting in this role courts are essentially agents of Congress.
NOTE: The author thanks Frank Cross, Marc Hetherington, H. W. Perry,
Chuck Shipan, Mark Richards, Emerson Tiller, and several anony-
3
mous reviewers for extensive and helpful comments on earlier ver-
The Administrative Procedures Act (5 USC 551), first passed by Con-
sions of this work.
gress in 1946, forms the “default” rules governing judicial review. How-
ever, in many of the regulatory statutes passed since 1970 Congress has
Political Research Quarterly, Vol. 58, No. 1 (March 2005): pp. 139-149
included judicial review provisions that supersede the APA.
139

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POLITICAL RESEARCH QUARTERLY
preferences regarding regulatory policy. Legislators who
CONGRESSIONAL CONTROL OF JUDICIAL POLICYMAKING
favor strict protection of the environment support
increased opportunities for the beneficiaries of regulation
Methodologically, scholarship on congressional control
to fight and win their policy battles in the courts. Legisla-
of the bureaucracy presents a useful framework for studying
tors who oppose strict protection of the environment sup-
interactions between Congress and the judiciary. There is an
port provisions that help objects of regulation to fight and
ongoing dispute over how closely Congress controls the
win their policy battles in court. A third important con-
agencies through which many of its statutes are imple-
clusion is that judicial review provisions are tools of inter-
mented. This dispute mirrors the debate over the extent of
branch conflict. By expanding the powers of courts to
independence enjoyed by the courts. The independence
supervise regulatory agencies, Congress transfers authority
theory asserts that agencies are largely independent of the
from the executive branch to the courts. Finally, the nature
legislature, while the control theory argues that agencies are
of judicial disputes makes it possible to design judicial
closely controlled by Congress or congressional committees
review provisions that will be useful to only one side in the
(Weingast and Moran 1983). As is true of judicial scholars,
struggle over regulatory policy. This explains why a Demo-
students of regulatory agencies have traditionally taken the
cratic Congress could feel comfortable in 1990 transfer-
lack of visible congressional supervision to mean that agen-
ring power to a largely Republican judiciary. I return to
cies are largely free to act without considering the wishes of
this point in the conclusion.
Congress (Dodd and Schott 1979: 170-84; Fiorina 1982).
The evidence for these points is the attention that mem-
Studies emphasizing congressional control of the bureau-
bers of Congress devote to judicial review provisions as they
cracy have concentrated on Congress’s ability to design
are creating regulatory programs. If these provisions were
agencies that are more or less accessible to interest groups,
not politically useful, members would not devote energy
and to allow agencies more or less discretion (McCubbins,
and resources to shaping them. Also, if these provisions
Noll, and Weingast 1987, 1989; Moe 1989).
were not being used purposefully to achieve political goals,
These analyses provide models for understanding the
we would not see advocates and opponents of strict envi-
interaction between Congress and the judiciary. From the
ronmental protection pushing systematically different types
perspective of Congress, the courts are similar in important
of provisions that are aligned with the interests of their con-
ways to agencies. Both courts and agencies interpret and
stituents. My hypotheses about the political importance of
enforce statutes passed by Congress and both depend on
judicial review provisions would be falsified if members of
Congress for money and decisionmaking authority.4 Just as
Congress devoted little or no attention to these provisions,
Congress can structure agencies so that they are more acces-
or if the preferences of members with regard to these provi-
sible to certain parties than others, Congress can create rules
sions were not explainable in terms of their substantive
of standing that allow certain potential litigants access to the
political preferences.
courts or rules of evidence that make the courts more or less
The conclusions that members of Congress are con-
appealing as policymaking venues.
cerned with judicial review provisions, that they manipulate
Investigations into Congress’s use of institutional tools to
these provisions to distribute benefits to constituent interest
control judicial policymaking have been done only rela-
groups...