THE NONDELEGATION CLIFFHANGER: IMPLICATIONS OF THE POTENTIAL DOCTRINAL SHIFT ON ENVIRONMENTAL LAW AND THE ROLE OF ENVIRONMENTAL ADVOCACY.

• Author: McDonald, Frederick A.

1. Introduction 26 II. A Brief Historical Overview of the Nondelegation Doctrine 28 III. A Shift in the Nondelegation Doctrine 30 IV. Environmental Statutes and a Revived Nondelegation Doctrine 32 A. Designation and Listing Provisions 33 1. The Clean Air Act: Sections 108 and 109 33 2. Other Designation and Listing Provisions 40 B. Liability Schemes 41 1. Joint and Several Liability 41 2. Strict Liability 44 C. Additional Considerations 45 V. The Potential Role of Environmental Advocacy 46 A. Nondelegation Challenges in the Context of Environmental Laws 47 B. Nondelegation Challenges in the Context of Environmentally Destructive Laws 49 VI. Conclusion 51 I. INTRODUCTION

   Environmental advocacy has played an essential role in society for decades as it often brings to light individuals' contributions to negative environmental complications, such as climate change and per- and polyfluoroalkyl substances (PFAS) contamination, while also providing a path toward correcting these problems. To illustrate this point, consider a statement from Dr. Patricia Westerford, an environmental advocate in the book The Overstory, that explains the interaction of society and the environment. In a memorable passage, Dr. Westerford opines that "[p]eople aren't the apex species they think they are. Other creatures--bigger, smaller, slower, faster, older, younger, more powerful--call the shots, make the air, and eat sunlight. Without them, nothing." (1) This statement seems to accurately depict a rather common mentality within society--that the environment is often considered second to people despite its inherent role in sustaining human life. (2)

   Fortunately, the law has provided a buffer for this sort of mentality in which government agencies, such as the United States Environmental Protection Agency (EPA), have the broad authority to take actions that support the continued health of the environment and people. (3) However, this successful legal system could soon face a drastic restructuring that would change the future landscape of environmental law, ultimately removing protections from the people first mentality. In 2019, the Supreme Court of the United States (Supreme Court) decided Gundy v. United States, (4) in which it held that the registration requirement provision of the Sex Offender Registration and Notification Act (5) (SORNA) did not violate the nondelegation doctrine. (6) While the decision did not alter the landscape of the administrative state, an assertive dissent by Justice Neil Gorsuch, accompanied by Chief Justice John Roberts and Justice Clarence Thomas, signaled a desire to reevaluate the confines of the nondelegation doctrine and left society to wonder when the Supreme Court would officially resuscitate it. (7) While the three Justices alone could not resurrect the presumably dead doctrine (also in part due to Justice Samuel Alito's failure to join the dissent), the addition of Justices Brett Kavanaugh and Amy Coney Barrett, who were both confirmed to the Court after Gundy, could result in a majority sufficient for revival. While a resurrected nondelegation doctrine would have an impact on the administrative state generally, it could have a profound impact on environmental law in particular, essentially undoing years of successful agency action under numerous environmental statutes or even preventing further agency action.

   This Article considers the impacts of a revived nondelegation doctrine on environmental law and the role environmental advocacy could play moving forward. Part II provides a brief historical overview of the nondelegation doctrine, its minimal use, and subsequent lack of use for over eight decades. Part III examines the Gundy decision, as well as Paul v. United States, (8) in which Justice Kavanaugh indicated a desire to also reconsider the boundaries of the nondelegation doctrine. (9) Part IV considers the impact of a revived nondelegation doctrine on specific environmental laws. This Part is not meant to be exhaustive, but rather to provide examples of potentially vulnerable areas of environmental law. Finally, Part V considers the role that environmental advocacy may play if the nondelegation doctrine is revived, and how such advocacy could benefit environmental law.

2. A BRIEF HISTORICAL OVERVIEW OF THE NONDELEGATION DOCTRINE

   Given the vast scholarship on the nondelegation doctrine, this Part provides a general overview to lay an appropriate foundation of the doctrine's history and present state prior to the current majority's desired shift pronounced in the Gundy and Paul decisions. (10) Until the Supreme Court strikes down a congressional delegation, the intelligible principle test, discussed below, remains the current standard under federal law despite Gundy and Paul.

   The nondelegation doctrine is an important component of both constitutional and administrative law. (11) Despite its importance, the doctrine is not explicitly found within the text of the United States Constitution. (12) Rather, the root of the doctrine stems from enumerated powers within Article I, which grant Congress the exclusive right to exercise legislative authority. (13) Because of this exclusive power, the nondelegation doctrine is meant to stop other branches of government from exercising legislative authority. (14) In a more practical sense:

   Executive officials generally cannot exercise legislative powers on their own initiative because they are not granted any such power by the Constitution. Nor can Congress confer such authority by passing vacuous statutes for officials to 'execute,' because those statutes... will therefore exceed Congress's enumerated powers under... Article I. (15) However, the administrative state in the United States does not necessarily function in this way. The executive branch often has vast discretion in exercising certain legislative authority based on a theory of "common sense and the inherent necessities of... governmental coordination." (16) In fact, the discretionary authority given to the executive branch is almost never invalidated on delegation grounds as long as Congress "lay[s] down by legislative act an intelligible principle to... the person or body authorized." (17) The intelligible principle standard, since its inception, has been interpreted broadly and only really requires that Congress provide some sort of guidance or direction to the body whom authority has been delegated to. (18) Only twice, during the New Deal period, has the Supreme Court actually found no intelligible principle and ultimately a violation of the nondelegation doctrine. (19)

   Both cases that invalidated congressional delegations occurred in 1935. In the first, Panama Refining Co. v. Ryan, (20) the Supreme Court considered whether Section 9(c) of the National Industrial Recovery Act (21) (NIRA) validly authorized the President to prohibit interstate and foreign transportation of oil in excess of state quotas. (22) The Court found that the President's use of an executive order under Section 9(c) was a violation of the nondelegation doctrine as Section 9(c) did not provide any guidance for the President to reasonably rely on, but rather gave him unfettered discretion. (23) Similarly, A.L.A. Schechter Poultry Corp. v. United States (24) also concerned a provision of NIRA. (25) In that case, the Supreme Court considered whether Section 3 of NIRA validly authorized the President to approve codes of fair competition for certain trades and industries. (26) As in Panama Refining Co., the Court found that Section 3 did not provide any guidance or standards for the President to consider when exercising the authority granted in the statute. (27)

   Despite the doctrine's affirmative use in the 1930s, the Supreme Court has yet to strike down other congressional delegations. (28) However, some Justices over the years have expressed an interest in revisiting the doctrine. Notably, in Industrial Union Department v. American Petroleum Institute (29)--often referred to as the Benzene case--the late Justice Rehnquist found that Section 6(b)(5) of the Occupational Safety and Health Act (30) violated the nondelegation doctrine in his concurring opinion. (31) Additionally, Justice Thomas has also noted an intention to revisit the nondelegation doctrine on at least two occasions. (32)

3. A SHIFT IN THE NONDELEGATION DOCTRINE

   While no Supreme Court case has really come close to invalidating congressional delegations, other than Panama Refining Co. and Schechter Poultry, the appointment of three new Justices during Donald Trump's presidency has greatly increased the potential for revival of the nondelegation doctrine. (33) In fact, during the 2019 and 2020 terms, the Supreme Court's current majority signaled a clear intent to begin invalidating delegations, starting with Gundy. (34)

   Gundy involved a delegation challenge to SORNA. (35) The provision at issue stated the following: "The Attorney General shall have the authority to specify the applicability of the requirements of this subchapter to sex offenders convicted before the enactment of this chapter... and to prescribe rules for the registration of any such sex offenders." (36) Given this broad authority, "the Attorney General issued an interim rule in February 2007, specifying that SORNA's registration requirements apply in full to 'sex offenders convicted of the offense for which registration is required prior to the enactment of that Act."' (37) Because of this retroactivity component, Herman Gundy, who was a pre-Act offender, was convicted for failing to register. (38) While no majority opinion resulted in Gundy, the plurality upheld the delegation on traditional, intelligible principle grounds. (39) The plurality opined that "[t]he text, considered alongside its context, purpose, and history" sufficiently provided an intelligible principle for the Attorney General in that such authority did not permit a determination of whether or not to apply SORNA to...