Presidential authority over EPA rulemaking under the Clean Air Act.

• Author: Ahlers, Christopher D.
• Position: Author abstract

1. INTRODUCTION A. The Clean Air Act, the Administrator, and the President B. A History of the Regulation of Ozone C. Different Views of What is an Independent Agency 1. The Legislative View 2. The Presidential View 3. The Judicial View a. Humphrey's Executor and the Unitary Theory of the Presidency b. OMB Interference with EPA D. The Special Case of the EPA E. Conclusions I. INTRODUCTION

During the past forty years of federal administrative law, there has been an increase in presidential authority due to the expansion of the regulatory state. In the case of the Environmental Protection Agency (EPA), this has played itself out in an evolving tension between the EPA Administrator and the President, over the promulgation of the national ambient air quality standards (NAAQS).

Two recent conflicts illustrate this tension. In 2008, Administrator Stephen Johnson was criticized for changing EPA policy under pressure from the Bush White House, with respect to three items on the agency's regulatory agenda. Those items included the agency's review and revision of the ozone NAAQS, its review of California's petition for a waiver from federal preemption for its greenhouse gas regulations for new motor vehicles, and its abandonment of a proposed rule that would regulate tailpipe emissions following the decision of the United States Supreme Court in Massachusetts v. Environmental Protection Agency. (2) A similar conflict arose in September 2011, when President Obama requested that Administrator Lisa Jackson withdraw a final rule revising the ozone NAAQS, when she was about to promulgate the final rule. (3) In both cases, allegations were made that the President had unlawfully interfered with the EPA Administrator's statutory obligations under the Clean Air Act. (4)

Part I of this article reviews the structure of the Clean Air Act, with a focus on the different roles of the President and the EPA Administrator. (5) Part II considers the importance of ozone as a criteria pollutant subject to regulation under the Clean Air Act, and how it has become a driving force in the tension between Congress and the President over the promulgation of the NAAQS. It reviews the facts surrounding the decisions of Administrator Stephen Johnson and Administrator Lisa Jackson regarding the revision of the ozone NAAQS, in the face of pressure from the White House. Part III reviews how Congress, the President, and the Supreme Court have differing views regarding the relationship between the President and federal agencies. Part IV evaluates the special case of the EPA in the universe of federal agencies, arising out its unique creation in 1970 and its powerful role as protector of the environment. Part V concludes that contemporary presidential predominance over the EPA merely reflects a historical pattern of acquiescence by a Congress that has not vigorously resisted presidential influence. Because of this predominance, challenges to EPA action based on alleged interference by the President are unlikely to be successful, either legally or politically. However, presidential interference generally causes EPA rulemakings to become less about science and more about politics, making such decisions more vulnerable to challenge under applicable standards of review.

1. The Clean Air Act, the Administrator, and the President

   While the Clean Air Act is considered the nation's first command-and-control environmental statute, it was not the first modern federal environmental statute. (6) That credit goes to the National Environmental Policy Act of 1969 (NEPA), effective the first day of the year 1970. (7) But the Clean Air Act was the first substantive environmental statute. Effective the last day of the year 1970, it created a comprehensive regulatory scheme for protecting public health and welfare from air emissions from industrial facilities (stationary sources) and cars and trucks (mobile sources). (8) Both types of sources cause air emissions of volatile organic compounds (VOCs) and nitrogen oxides (NOx), which react with each other in the presence of the sun's ultraviolet light to form ozone, a lung-searing chemical that is dangerous to human health and the environment. (9)

   "Cooperative federalism" forms the engine of the Clean Air Act, and is embodied in sections 108, 109, and 110 of the statute. (10) Section 108 requires the Administrator to publish a list of air pollutants that may endanger public health or welfare. (11) Exercising this authority, EPA Administrators have identified six "criteria pollutants," including ozone. (12) Section 109 requires the Administrator to promulgate National Ambient Air Quality Standards (NAAQS) for these "criteria pollutants," and "review and revise standards, as may be appropriate." (13) These standards are national, uniform levels of pollution that are binding and enforceable against all states, rather than directly against facilities. (14)

   The Clean Air Act makes air pollution prevention and control the primary responsibility of state and local governments. (15) Once the Administrator has identified criteria pollutants and promulgated NAAQSs, section 110 requires states to prepare and submit state implementation plans (SIPs) to EPA for its review and approval. (16) In reviewing their SIPs, EPA cannot dictate to the states the specific policy choices for achieving the NAAQSs. Rather, such decisions are left to the discretion of the states. (17)

   Consequently, EPA's role in the regulation of criteria pollutants largely involves determining appropriate ambient air quality standards. Congress has directed the Administrator to promulgate primary standards that are "requisite to protect the public health," while "allowing an adequate margin of safety." (18) In addition, the Administrator is required to promulgate secondary standards that are "requisite to protect the public welfare," which contemplates effects on the environment. (19) The setting of the NAAQS has been driven principally by concerns for public health, as opposed to public welfare. As in the case of ozone, EPA often promulgates a primary standard for public health, and then sets a secondary standard for public welfare at the same level. (20)

   The statute requires the Administrator to appoint an independent scientific review committee (the Clean Air Scientific Advisory Committee, or CASAC) to complete a review of criteria that might inform the Administrator's judgment in setting the NAAQSs. (21) The Administrator must review any promulgated NAAQS every five years, and revise it, if appropriate. (22)

   Nowhere in sections 108, 109, or 110 has Congress identified a role for the President. (23) Congress specifically mentions the President in other contexts throughout the Clean Air Act. But those references typically relate to duties and powers of a presidential nature, such as the determination of national security waivers of statutory requirements. (24) The Clean Air Act spends much more time delineating the authorities and duties of the Administrator, rather than the President. While the Administrator is mentioned 2,474 times in the Clean Air Act, the President is mentioned only seventy times. (25) This uneven division of attention is also characteristic of the other two principal command-and-control statutes, the Clean Water Act and the Solid Waste Disposal Act, as amended by the Resource Conservation and Recovery Act. (26)

   Federal laws relating to air pollution before 1970 either did not refer to the President at all, or when referring to the President, did not contemplate a degree of authority similar to EPA's post-1970 authority to set the NAAQS. These amendments were enacted in 1955, (27) 1963, (28) 1965, (29) 1967, (30) and 1970. (31)

   In contrast, Congress chose a contrary approach in enacting the nation's remediation statute, the Comprehensive Environmental Response, Compensation and Liability Act of 1980 (CERCLA). (32) In that statute, there are far more references to the President (441 references) than to the Administrator (269 references). (33) Therefore, when Congress intended for the President to have a greater role over the environment, it specifically chose to grant him that role.

   The difference in relative treatment can be explained by the different purposes of the statutes. The Clean Air Act, the Clean Water Act, and the Solid Waste Disposal Act were primarily intended to regulate pollution of three types of environmental media (air, water, and land) occurring in the future. (34) In contrast, CERCLA was intended as a cleanup statute to remediate pollution that has occurred in the past. (35) CERCLA presented a compelling case for presidential involvement because the purpose was to require the cleanup of contaminated sites that were often abandoned, with no visible responsible party. (36) It was not a forward-looking regulatory statute, but a backward-looking remediation statute.

   Three events occurring in 1970 created the conditions for modern power disputes over the ozone NAAQS--the organization of the Office of Management and Budget, the formation of the EPA, and the enactment of the Clean Air Act. In 1970, President Nixon created the Office of Management and Budget (OMB) by reorganizing the existing Bureau of the Budget, pursuant to a Reorganization Act. (37) The Bureau of the Budget had previously been a part of the Executive Office of the President, and the OMB continued to be a part of that same office. (38) But the organization of OMB in the same year that EPA was created set the stage for a long term struggle over environmental law and policy. The enactment of the Clean Air Act in the same year created the substantive law over which that struggle has been waged.

   An early struggle between OMB and the EPA during the Nixon administration foreshadowed future conflicts. (39) On April 7, 1971, EPA published a proposed rule for the preparation of SIPs that would have required the states to establish and operate a permit system...