Agency Authority to Regulate Under the Clean Air Act Upheld
K.G. Moore
April 21, 2001
In May of 1999, the D.C. Circuit Court of Appeals effectively called into question the broad deference that courts have traditionally afforded agencies in construing the statutory law they are charged with administering. The decision in American Trucking Association v. EPA disturbed the environmental community. According to one group, "the decision [of the D.C. court of appeals] turned back EPA's clean air health standards by disregarding more than a half century of Supreme Court precedent and thirty years of national clean air policy."[1] As such, and following successful petitions for certiorari, two aspects of that decision were recently argued before the U.S. Supreme Court.[2] First, should the EPA consider cost when setting National Ambient Air Quality Standards (NAAQS) under the Clean Air Act (CAA)?[3] Second, did the EPA overstep its constitutional boundaries in setting new NAAQS for ground level ozone and particulate matter?[4] Following entertainment of oral arguments last year, the Supreme Court handed down its decision on February 27, 2001, upholding the standards used in keeping our nation's air clean and the statutory authority afforded to all agencies of the executive branch.
In American Trucking the Court of Appeals found deficiencies in the EPA's promulgation of NAAQS for ground level ozone and particulate matter and remanded the standards back to the agency for revision.[5] The Court held that contrary to the claims of industry petitioners, § 109 of the CAA does not allow the EPA to consider cost when setting NAAQS.[6] However, the majority panel opined that in setting NAAQS for ozone and particulate matter, the EPA had not articulated an "intelligible principle" upon which its decision was based.[7] In usurping the usual deferential review of agency actions the Court found that the EPA's interpretation of the CAA was so loose as to constitute an "unconstitutional delegation of power."[8] The Court's decision raised a constitutional dilemma unheard of in decades, the nondelegation doctrine.
By Congressional mandate under § 109 of the CAA, the EPA is to set NAAQS, which in turn determine emission levels for individual criteria pollutants. 9 NAAQS are categorized as either primary, which protect public health, or secondary, which protect public welfare.[10] Based on the federally determined NAAQS and subsequent EPA approval, states then implement the emissions levels through individual "state implementation plans." 11Before this groundbreaking opinion, the EPA had wielded its authority under the CAA for nearly thirty years without constitutional challenge. The Court of Appeals did acknowledge that § 109(b)(1) directs the EPA to set each standard at the level "requisite to protect public health" with an "adequate margin of safety." [12] The criteria that the EPA considers when setting the level of the standards are the "severity of effect, certainty of effect, and size of population affected" by emissions of the criteria pollutant. 13 Upon reviewing these criteria the Court found that "the factors EPA uses in determining the degree of public health concern associated with different levels of ozone and PM are reasonable." 14
However, the Court struck a blow to the EPA's authority to regulate by remanding the standards for revision because "the EPA appears to have articulated 'no intelligible principle' to channel its application of these factors; nor is one apparent from the statute. The nondelegation principle requires such a principle." 15 While these criteria have "long [been] approved by the judiciary," they "do not themselves speak to the issue of degree." 16 Essentially, the Court said that without intelligibly stating determinate criterion, the EPA failed to say how much is too much in terms of the level of particulate matter and ozone pollution that would adversely affect human health and welfare.[17] This reluctance to defer to the expertise of the agency goes against current and controlling jurisprudence.[18]
Congress routinely passes general legislation and then relies on the expertise of agencies to properly carry out the mandates of the legislation. Generally, as long as "the agency is given a discernible principle to guide its exercise of that authority," such delegations pass constitutional muster. 19 Therein lies the troubling nature of the rationale behind the Court's decision in American Trucking. The Court posited that the criteria only show that adverse affects are "possible but not certain at [the established] level." 20 As a result, the Court substituted its ignorance of environmental policy and yearned for a clear definition of where the line should be drawn. By reaching this conclusion, the activist panel inferred that, after years of laboring in the House and Senate, the legislators who drafted the CAA failed to address how the EPA's decisions under the Act would come to be understood by laypersons.
The decision was confusing even to then EPA Administrator Carol Browner who testified that the Court seemed to ignore "the fact that for the past 64 years, Congress has passed laws and then relied on executive agencies to set the particular rules to carry our those broader legislative goals rules that ultimately have protected the health, safety and security of all Americans." 21 In fact, Browner went on to say, "the court explicitly recognized the strong scientific and public health rationale for tougher air quality protections." 22 In the face of the possibly dire implications surrounding the decision, on November 7, 2000, the U.S. Supreme Court entertained oral arguments from industry and the EPA.[23]
Industry representatives argued that the EPA is authorized to consider cost when setting NAAQS and attacked the EPA's regulation of criteria pollutants, absent consideration of cost, as arbitrary. 24 Although industry conceded that the EPA has broad authority under the CAA, it proffered extreme examples relating to what would eventually lead to an unreasonable and unconstitutional progress of agency authority. 25 Industry counsel alleged that "the one thing [the agency] doesn't have the discretion to do is to take countervailing factors [such as cost, etc.] off the table because what that is doing is giving the agency the freedom to take us all the way down to deindustrialization."[26] Referring to air pollution regulations which he professed would put a stranglehold on industry, industry counsel Edward Warren went on to argue that "I frankly don't know how [we can function] in a world of limited resources if we don't think about what risks are acceptable."[27]
Arguing with an apparent strong base of legislative support, Solicitor Waxman responded by arguing that cost was not a permissible consideration for determining appropriate emissions levels.[28] He explained to the Court that "the legislative history and the text of the '70 Act are absolutely clear, and the EPA and D.C. Circuit have been unanimous for [nearly] 30 years, that in setting standards the EPA is to consider only what the criteria documents reveal as the effects on public health and welfare of the pollutant in the air, and that the costs are determined at the implementation phase by the states, and by the EPA."[29]
As to the issue of nondelegation and the failure of the EPA to offer an intelligible principle to measure the sufficiency of its actions, industry argued that "[the EPA] is bucking the whole regulatory process, because they are characterizing risk when the question really is how do you manage risks." 30 Therefore, industry representatives further argued, "requisite to protect the public health" is not a clear principle by which to regulate and even so, "[the EPA] has to have competing factors" in mind when regulating. 31 The EPA, industry said, had acted under an impermissible delegation of power.[32]
The argument appeared to be unconvincing and Solicitor Waxman responded by relying on the Court's own jurisprudence and his position that the EPA did indeed regulate using an intelligible principle. Waxman explained that when regulating for "adverse health effects," the administrator has determined the term to mean "medically significant." He continued by saying that the Court of Appeals held that "the Constitution requires more, specifically the articulation of what it called a determinate criterion to govern the setting of the precise standard for each pollutant." [33] This, Waxman argued, "is contrary to this Court's precedents which require that [reviewing courts] . . . [merely] delineate the general policy, the public agency that is to accomplish it and the boundaries of delegated authority."[34] He added, "requisite to protect the public health" is a clear intelligible principle and means merely "sufficient, but not more than necessary." 35
The Court ultimately agreed with the arguments offered by the EPA. In its subsequent opinion, which upheld the constitutionality of the Clean Air Act and reaffirmed the prohibition against consideration of costs when setting NAAQS, the Court clarified and strengthened the EPA's future ability and effectiveness to safeguard air resources. The Court rejected industry representatives' position that because other sections of the CAA expressly permit the consideration of costs when implementing regulations to carry out the mandates of those sections, it may be inferred that costs may be considered when setting NAAQS. In what Justice Scalia termed a "most natural of readings" regarding this proposition, the Court "refused to find implicit in ambiguous sections of the CAA an authorization to consider costs." 36 The Court adhered to legislative intent on the matter because it would be "implausible that Congress would give to the EPA . . . the power to determine whether implementation costs should moderate national air quality standards." 37 As such, the Court ultimately found that "the text of § 109(b), interpreted in its statutory and historical context and with appreciation for its importance to the CAA as a whole, unambiguously bars cost considerations from the NAAQS-setting process." 38
To the delight of environmentalists and with a strong showing of support for the substance of the CAA, in part two of its opinion, the Court went on to hold that the nondelegation doctrine also had not been violated. The issue in such a challenge is a constitutional one and "whether the statute [in question] has delegated Article I § 1 legislative power to the agency" which is impermissible. 39 Therefore, to avoid a nondelegation problem, "Congress must lay down by legislative act an intelligible principle to which the person or body authorized to [act] is directed to conform." 40 Following an examination of the language enumerated in § 109(b), the Court found that "the scope of discretion [that that section] allows is in fact well within the outer limits of our nondelegation precedents" and the delegation of authority under § 109(b) was thus permissible. 41
As a result of this decision, the Court effectively preserved the authority of agencies of the executive branch and reinforced the EPA's Congressional mandates under the CAA. By blocking industry efforts to set back the past successes of preserving our nation's air resources, the opinion will inevitably allow future progress in protecting the air that we breathe.
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[1]Supreme Court Will Review Public Health Air Quality Standards, at http://www.environmentaldefense.org/pubs/NewsReleases/2000/May/k_supreme.html (visited Feb. 3, 2001).
[2]American Trucking v. EPA, 175 F.3d 1027 (D.C. Cir. 1999), cert. granted (No. 99-1257), available at http://www.supremecourtus.gov/calendar/.
[3]Id.
[4]Id.
[5]See generally American Trucking Assoc., v. EPA, 175 F.3d 1027 (D.C. Cir. 1999).
[6]Id. at 1034.
[7]Id.
[8]Robert Meltz, The D.C. Circuit Remands the Ozone and Particulate Matter Clean-Air Standards: American Trucking v. EPA, Comm. for the Nat'l Inst. For the Env't, at 2 (Jun. 10, 1999), at http://www.cnie.org/nle/air-29.html (visited Feb. 3, 2001).
[9]Clean Air Act of 1970, 42 U.S.C. § 7409 (1990).
[10]Id.
[11]Clean Air Act of 1970, 42 U.S.C. § 7410 (1990).
[12]American Trucking Assoc. v. EPA, 175 F.3d at 1034.
[13]Id. at 1035.
[14]Id. at 1034.
[15]Id.
[16]Id. at 1035.
[17]Id. at 1034.
[18]See Chevron, Inc. v. Natural Resources Defense Council, 467 U.S. 837 (U.S. Sup. Ct. 1984).
[19]Robert Meltz, The D.C. Circuit Remands the Ozone and Particulate Matter Clean-Air Standards: American Trucking v. EPA, Comm. for the Nat'l Inst. For the Env't, at 2 (Jun. 10, 1999), at http://www.cnie.org/nle/air-29.html (visited Feb. 3, 2001) (emphasis omitted).
[20]American Trucking Assoc. v. EPA, 175 F.3d at 1036.
[21]See Generally Hearing of the Senate EPW Subcommittee on Clean Air, 105th Cong. (1999) (Testimony of Carol M. Browner, Administrator, EPA), at http://www.epa.gov/ttn/oarpg/gen/cmbtest.html.
[22]Id.
[23]American Trucking v. EPA, 175 F.3d 1027 (D.C. Cir. 1999), cert. granted (No. 99-1257), available at http://www.supremecourtus.gov/calendar/99-1257rev.pdf.
[24]See Cross Petitioner's Oral Argument, American Trucking v. EPA, 175 F.3d 1027 (D.C. Cir. 1999), cert. granted (No. 99-1426), available at http://www.supremecourtus.gov/calendar/99-1426.pdf.
[25]Id.
[26]Id. at 16.
[27]Id. at 20.
[28]Petitioner's Oral Argument, American Trucking v. EPA, 175 F.3d 1027 (D.C. Cir. 1999), cert. granted (No. 99-1257), available at http://www.supremecourtus.gov/calendar/99-1257rev.pdf.
[29]Id. at 11.
[30]Cross Petitioner's Oral Argument at 35, American Trucking v. EPA, 175 F.3d 1027 (D.C. Cir. 1999), cert. granted (No. 99-1257), available at http://www.supremecourtus.gov/calendar/99-1257rev.pdf.
[31]Id. at 34.
[32]Id.
[33]Id. at 4.
[34]Id.
[35]Id. at 7.
[36]Whitman v. American Trucking, Nos. 99-1257 and 99-1426, slip op. at 5-7 (Sup.Ct. Feb. 27, 2001).
[37]Id. at 8.
[38]Id. at 11.
[39]Id. at 12.
[40]Id.
[41]Id. at 13.