D.C. Circuit revives nondelegation doctrine ... or does it? American Trucking Associations, Inc. v. EPA.

• Author: Dimino, Michael Richard

D.C. CIRCUIT REVIVES NONDELEGATION DOCTRINE ... OR DOES IT?: American Trucking Associations, Inc. v. EPA, 175 F.3d 1027 (D.C. Cir. 1999), modified, 195 F.3d 4 (D.C. Cir. 1999)

1. INTRODUCTION

   Article I, Section 1 of the Constitution charges Congress with the ability and the duty to make the law.(1) Courts have always understood, however, that Congress has the capacity to delegate some legislative power to other institutional actors,(2) typically those in the executive branch.(3) Such delegations are justified by the "practical understanding that in our increasingly complex society, Congress simply cannot do its job absent an ability to delegate power under broad general directives."(4) This does not mean that Congress enjoys unlimited authority to delegate. Under the judicially crafted "nondelegation doctrine," Congress delegates too much lawmaking power if it fails to provide an "intelligible principle to which the person or body [receiving the delegated power] is directed to conform."(5)

   Since the New Deal, the United States Supreme Court has found an "intelligible principle" in exceptionally broad delegations of power from Congress.(6) However, the Supreme Court has never approved a delegation as broad as the one in the Clean Air Act (the "Act")(7)--the authority to promulgate any standard for air quality that the Environmental Protection Agency (the "EPA" or "Agency") deems "requisite to protect the public health."(8) Last May, in American Trucking Associations, Inc. v. EPA,(9) a panel of the Court of Appeals for the D.C. Circuit held that two sections of the Clean Air Act, as construed by the EPA, violated the nondelegation doctrine. Nevertheless, the panel remanded to the EPA so that the EPA could re-interpret the Act to pass constitutional muster.(10) Although American Trucking arguably allocates decisions regarding the scope of agency authority to a politically-accountable actor--an agency--rather than a court, the D.C. Circuit fails to note that it matters which politically-accountable actors make those decisions. By allowing the EPA to prescribe the limits of its own authority under the Act, the court of appeals ignored the core function of the nondelegation doctrine, which is to ensure that Congress makes policy choices. Indeed, the doctrine as applied by the court of appeals provides no limit on Congress's power to delegate authority.

   Properly construed, the nondelegation doctrine requires that the Clean Air Act be struck down because the text of the Act provides no limit on the scope of the EPA's authority. Indeed, the EPA can use any conceivable amount of vigor in protecting the public health--including prohibiting all industrial activity--and still be within the terms of the Act. While broad delegations in the past were approved with the knowledge that agencies would be guided by legislative history or practices under the common law, the Clean Air Act gives the EPA neither explicit nor implicit standards. As a result, the Act departs from the constitutionally-mandated system of congressional lawmaking more than does even the most permissive Supreme Court precedent. Therefore, the Supreme Court should return the Act to Congress to force Congress, rather than the EPA, to make the hard choices between public health and industrial interests.

2. FACTS AND PROCEDURAL HISTORY

   Congress passed the Clean Air Act "to protect and enhance the quality of the Nation's air resources so as to promote the public health and welfare and the productive capacity of its population."(11) Rather than specify the balance that was to be struck between public health and productivity, Congress delegated broad authority to the EPA to determine which levels of air pollutants would be lawful.(12) Indeed, the Act authorizes the EPA Administrator to promulgate any standard for air quality that the EPA deems "requisite to protect the public health" within an "adequate margin of safety."(13) Congress provided the EPA with little additional guidance for applying the Act.(14)

   1. American Trucking I

      In July 1997, in accordance with its authority under [sections] 7409(b)(1) of the Act, the EPA announced new National Ambient Air Quality Standards ("NAAQS") for ozone and particulate matter ("PM").(15) Several parties petitioned the Court of Appeals for the District of Columbia Circuit to review the rules,(16) arguing, in pertinent part, that in promulgating the rules the EPA had construed [subsections] 7408 and 7409 of the Act "so loosely as to render them unconstitutional delegations of legislative power."(17)

      By a two-to-one majority, a panel of the court of appeals accepted the argument, declaring that as construed by the EPA the Clean Air Act violates the nondelegation doctrine.(18) Judge Williams penned the majority opinion, which Judge Ginsburg joined.(19)

      Judge Williams noted initially that the EPA regards ozone and PM as "non-threshold pollutants" that "have some possibility of some adverse health impact ... at any exposure level above zero."(20) As such, the only risk-free level for ozone and PM--fully to "protect the public health"--is zero.(21) According to Judge Williams, therefore, "[f]or [the] EPA to pick any non-zero level it must explain the degree of imperfection permitted."(22) The court did not find fault with the factors the EPA chose for this purpose, but instead focused on the "lack[] [of] any determinate criterion for drawing lines" between different standards.(23) In other words, although the EPA "basically considers severity of [the health] effect, certainty of [the health] effect, and size of population affected,"(24) the EPA "articulated no `intelligible principle' to channel its application of these factors" when setting NAAQS for a non-threshold pollutant.(25) Thus, the discretion conferred to the EPA exceeded the constitutional limits of the nondelegation doctrine.

      The panel rejected the EPA's arguments in defense of its ozone and PM standards. Judge Williams characterized the EPA's position as essentially "that a less stringent standard [than that set by the EPA] would allow the relevant pollutant to inflict a greater quantum of harm on public health, and that a more stringent standard would result in less harm."(26) According to Judge Williams, this argument proved nothing more than "larger public health harms (including increased probability of such harms) are, as expected, associated with higher pollutant concentrations."(27) But it provided no limit at all: the EPA's suggested criteria for incrementally tightening NAAQS--that harmful health effects are possible, but not certain, at lower levels of exposure--"could as easily, for any nonthreshold pollutant, justify a standard of zero" as any other standard.(28) At the other extreme, Judge Williams argued, the EPA's rationale could ostensibly "justify a refusal to reduce levels below those associated with London's `Killer Fog' of 1952."(29) No intelligible principle tells the EPA where to stop.(30)

      Instead of overturning the Act and returning it to Congress, however, the court remanded to the EPA:

      Where (as here) statutory language and an existing agency interpretation involve an unconstitutional delegation of power, but an interpretation without the constitutional weakness is or may be available, our response is not to strike down the statute but to give the agency an opportunity to extract a determinate standard on its own.(31) A remand to the EPA, according to the panel, "serves at least two of the three basic rationales for the nondelegation doctrine": restricting the likelihood that an agency will "exercise the delegated authority arbitrarily," and enhancing the opportunity for "meaningful" judicial review.(32) The court conceded, however, that remand did not serve the third function of "ensur[ing] ... that important choices of social policy are made by Congress, the branch of our Government most responsive to the popular will."(33) Under the court's standard, "[t]he agency will make the fundamental policy choices."(34) Judge Williams viewed the disposition as a compromise between the nondelegation doctrine and the two canons of avoidance of unnecessary constitutional questions(35) and deference to an administrative agency's interpretation of a statute the agency enforces:(36) "[T]he remand ... ensure[s] that the courts not hold unconstitutional a statute that an agency, with the application of its special expertise, could salvage."(37)

      Judge Tatel dissented from Part I of the court's opinion.(38) In Judge Tatel's view, by threatening to strike down the Clean Air Act--which, as Judge Tatel noted, "has been on the books for decades"--the court ignored both the Supreme Court's nondelegation jurisprudence since the New Deal and the restrictions in fact placed on the EPA's discretion by the Act.(39)

      Arguing first from precedent, Judge Tatel asserted that the Act's requirement that NAAQS be "requisite to protect the public health" was "narrower and more principled than delegations the Supreme Court ... ha[d] upheld since Schechter Poultry."(40) Indeed, Judge Tatel cited six Supreme Court decisions, spanning five decades, in which broad delegations of legislative power had been upheld.(41)

      Judge Tatel stressed that the Act cabined the EPA's discretion by requiring it to set NAAQS based on the "latest scientific knowledge."(42) In promulgating the ozone and PM NAAQS, the EPA had followed guidelines developed by the American Thoracic Society to identify which health effects were significant enough to warrant protection, then set the NAAQS within the range recommended by the Clean Air Scientific Advisory Committee.(43) In addition, the EPA asserted that more stringent criteria, in the case of ozone, would run the risk of targeting naturally-caused pollution and, in the case of PM, would fail to produce statistically-significant health effects.(44) If the EPA arbitrarily selected its scientific evidence or otherwise departed from its own...