Federal appellate court revives the nondelegation doctrine in environmental case.

A fundamental prerequisite for the growth of the federal government in the 20th century has been the ability of Congress to delegate broad powers and duties to agencies in the executive branch. This delegation of power, however, cannot be unbridled; the U.S. Supreme Court has on occasion invalidated acts of Congress for a violation of the "nondelegation" doctrine.(1) While some commentators have declared the nondelegation doctrine to be a dead relic from New Deal era jurisprudence, others have maintained that nondelegation principles are essential to ensure that the basic public policy decisions are made by the elected Congress rather than the less accountable agency administrators.(2) The U.S. Court of Appeals, District of Columbia Circuit, recently reinvigorated this debate with its decision in American Trucking Associations (ATA), Inc., v. EPA, 1999 WL 300618 (D.C. Cir. May 14, 1999). The court remanded two air quality standards back to the U.S. Environmental Protection Agency (EPA), holding that the EPA's interpretation of the Clean Air Act (CAA) in promulgating the two standards would render the CAA unconstitutional for violating the nondelegation doctrine. This opinion was immediately denounced by EPA Administrator Carol Browner before a Senate subcommittee as "extreme, illogical, and bizarre."(3)

To set the stage, the federal CAA directs the EPA to develop and periodically revise National Ambient Air Quality Standards (NAAQS) for air pollutants once the EPA determines that a pollutant may reasonably be anticipated to endanger public health or welfare.(4) A NAAQS must be established at the level of protection which is "requisite to protect the public health" with an "adequate margin of safety."(5) Under the Clinton administration, the EPA has engaged in an aggressive program to strengthen the NAAQS for ozone and particulate matter (PM), and to reduce emissions of precursors to both pollutants. In July 1997, the EPA promulgated a more stringent NAAQS for ozone (the "eight-hour ozone standard") and a new NAAQS for fine particulate matter ([PM.sub.2.5]).(6)In separate actions based in part on these two standards, the EPA recently promulgated a 22-state program for significantly reducing NOx emissions in the eastern U.S. (the "NOx SIP Call") and the Regional Haze Rule which will ultimately further reduce NOx emissions and ambient concentrations of [PM.sub.2.5].(7)

Numerous interests challenged the validity of the eight-hour ozone standard and the [PM.sub.2.5] standard, including electric utilities, industrial interests, a trucking association, and several of the Midwestern states that would bear the brunt of compliance with the NAAQS due to the high level of industrial activity in their states. The EPA, various public interest environmental and health organizations, and several Northeastern states which claim to be receiving pollution from upwind (Midwestern) states defended these NAAQS. Collectively, the petitioners' principal challenge to the NAAQS was to question the validity of the scientific data used to support their promulgation. However, certain small business petitioners also advanced the argument that the EPA had construed [subsections] 108 and 109 of the CAA so broadly as to render them unconstitutional delegations of legislative power.(8)

This "nondelegation" doctrine is rooted in the separation of powers principle that is the basis of our tripartite form of government.(9) It prohibits Congress from delegating its legislative power to another branch of government. However, Congress is free to seek assistance in the performance of its legislative duties so long as it prescribes an "intelligible principle" which constrains another branch's exercise of the delegated authority.(10) Although the nondelegation doctrine has been a part of U.S. Supreme Court jurisprudence for well over 100 years, it has been relied upon only twice to invalidate acts of Congress, with both instances in 1935 where the Court struck down New Deal legislation.(11)

Despite the fact that the Supreme Court has rejected all of the nondelegation claims to come before it over the past six decades, a three-judge panel of the D.C. Circuit relied on the nondelegation doctrine to remand the eight-hour ozone standard and [PM.sub.2.5] standard to the EPA in ATA.(12) In revising the NAAQS for ozone to 0.08 parts per million (ppm) from a level equivalent to 0.09 ppm, the EPA considered the severity of the adverse effects wrought by a pollutant, the certainty that the adverse effects will occur, and the size of the population that will be affected.(13) Although the factors relied upon by the EPA are "reasonable," they are incomplete because:

EPA appears to have articulated no "intelligible principle" to channel its application of these factors; nor is one apparent from the statute.... Here it is as though Congress commanded EPA to select "big guys," and EPA announced that it would evaluate candidates based on height and weight, but revealed no cut-off point. The announcement, though sensible in what it does say, is fatally incomplete. The reasonable person responds, "How tall? How heavy?"(14)

Thus the EPA never provided an explanation to the satisfaction of the court for choosing 0.08 ppm, as opposed to 0.07 ppm, 0.09 ppm, or some other level. The EPA failed to contradict the intuitive proposition that strengthening the ozone standard further would result in additional public health benefits.(15) Therefore, the court held, the EPA's promulgation of the eight-hour ozone standard and the [PM.sub.2.5] standard violated the nondelegation doctrine because the EPA exercised too much discretion in establishing the NAAQS. Since the EPA may be able to promulgate a NAAQS in accordance with constitutional requirements, the court remanded both NAAQS to the EPA rather than striking down [subsections] 108 and 109 of the CAA as unconstitutional.(16)

The court recognized that the EPA faces a difficult task in adopting a constitutionally sufficient "intelligible principle." Prior interpretations of the CAA, affirmed by the court in the ATA opinion, prohibit the EPA from considering the most obvious principle--a cost-benefit analysis--in establishing a NAAQS.(17) The court concluded that if the EPA cannot discern an intelligible principle, then it can so report to Congress and seek legislation ratifying its proposed NAAQS.(18) Therefore, the court has anticipated that [subsections] 108 and 109 of the CAA ultimately may be held unconstitutional if no intelligible principles exist to validate the EPA's promulgation of NAAQS.

If the nondelegation doctrine is to remain a viable element of federal jurisprudence, then the instant case is a prime candidate for its application. In the CAA, Congress directed the EPA to establish NAAQS at levels "requisite" to protect public health with an adequate margin of safety.(19) Given that ozone is a naturally occurring,(20) nonthreshold pollutant,(21) the court recognized that it may be impossible for the EPA to comply with this mandate for ozone.(22) Thus, in choosing a level for the ozone NAAQS, the EPA invariably must make policy decisions as to how much pollution is too much and what level is acceptable. Although the EPA is precluded from considering costs in establishing NAAQS, the fact is that lowering the ozone NAAQS by 0.01 ppm (from 0.09 to 0.08) is projected by the EPA to result in national compliance costs of 9.6 billion dollars per year above and beyond the annual costs that would be incurred by retaining the former one-hour ozone standard.(23)

While it seems desirable for Congress, rather than an agency, to make such an important decision, some argue that the court's nondelegation holding nonetheless runs contrary to established precedent. In a vigorous dissent to the majority's nondelegation holding, Circuit Judge Tatel responds to the majority's holding as follows:

The Clean Air Act has been on the books for decades, has been amended by Congress numerous times, and has been the subject of regular oversight hearings. The Act has been parsed by this circuit no fewer than ten times in published opinions delineating EPA authority in the NAAQS setting process. Yet this court now threatens to strike down section 109 of the Act as an unconstitutional delegation of congressional authority unless EPA can articulate an intelligible principle cabining its discretion. In doing so, the court ignores the last half-century of Supreme Court jurisprudence....(24)

Based on the Supreme Court's most recent nondelegation holding, Judge Tatel's view could be followed on appeal.

Since 1935, the Supreme Court has rejected nondelegation challenges to acts of Congress in at least eight written opinions without accepting a nondelegation challenge even once.(25) The Supreme Court's most recent significant review of the nondelegation doctrine was in Mistretta v. U.S., 488 U.S. 361, 371 (1989). In an 8-1 decision, the Court upheld the act which allowed the U.S. Sentencing Commission to establish the federal sentencing guidelines and specifically rejected the application of the nondelegation doctrine. Despite the fact that the commission enjoyed "significant discretion in formulating guidelines," the Court harbored "no doubt" that Congress' delegation satisfied constitutional requirements.(26) The Court noted that "without deviation," it has upheld Congress' ability to delegate power under broad standards since 1935.(27)

The Court characterized its nondelegation jurisprudence as "driven by a practical understanding that in our increasingly complex society, replete with ever changing and more technical problems, Congress simply cannot do its job absent an ability to delegate power under broad general directives."(28) Surely modern regulation in the environmental arena in general, and the establishment of NAAQS in particular, qualifies as "complex" and "technical," thus similarly allowing Congress to delegate power to the EPA under broad general directives.

Even the lone dissenting justice in Mistretta (Scalia) concluded that the nondelegation doctrine did not apply to the case before it. In fact, Justice Scalia went even further than the majority, declaring that the nondelegation doctrine is a concept that is not readily enforceable by the courts.(29) Given the extensive Supreme Court nondelegation precedent, he pondered, "What legislated standard, one must wonder, can possibly be too vague to survive judicial scrutiny, when we have repeatedly upheld, in various contexts, a `public interest' standard?"(30) The CAA provision directing the EPA to establish NAAQS which are "requisite to protect the public health" with an "adequate margin of safety"(31) seems to constrain the EPA discretion more than an authorization to establish NAAQS in the "public interest" would, so it could be found valid under this precedent.

The invocation of the nondelegation doctrine to return to Congress the responsibility to make the tough policy decisions inherent in the establishment of the NAAQS at issue does seem appropriate, however, given the financial burden to be imposed on the national economy to comply with the EPA's new eight-hour ozone standard.(32) But given the Supreme Court nondelegation precedent and the history of the CAA as recorded by Judge Tatel, the Supreme Court may grant certiorari to review this case if so requested. The EPA has filed a petition for the D.C. Circuit to rehear the case en banc. As of press time, the D.C. Circuit had not acted on this petition, and the filing of this petition serves to stay the effect of the ATA opinion pending a decision on the petition, unless the court orders otherwise.(33) Therefore, the ATA opinion currently has no legal effect, and either the D.C. Circuit sitting en banc or the Supreme Court (or both) may still weigh in on this nondelegation issue before it is ultimately resolved.

(1) See A.L.A. Schechter Poultry Group v. U.S., 295 U.S. 495 (1935); Panama Refining Co. v. Ryan, 293 U.S. 388 (1935).

(2) See, e.g., Industrial Union Dept., AFL-CIO v. American Petroleum Institute, 448 U.S. 607, 687 (1980) (Rehnquist, J., concurring), for a listing of articles on both sides of this issue.

(3) BNA, INC. ENV'T REP. 158 (May 28, 1999). Browner is the administrator of the U.S. Environmental Protection Agency.

(4) 42 U.S.C. [sections] 108(a)(1)(A).

(5) 42 U.S.C. [sections] 109(b)(1).

(6) See 62 Fed. Reg. 38856 and 38652 (July 18, 1997). Note that ozone is not emitted directly into the atmosphere; it is formed through complex reactions between nitrogen oxides (NOx) and volatile organic compounds (VOCs) in the presence of sunlight. Similarly, while some [PM.sub.2.5] is directly emitted to the atmosphere, the majority of it is formed by the conversion of NOx into nitrate particles and sulfur dioxide ([SO.sub.2]) into sulfate particles.

(7) See 63 Fed. Reg. 57356 (Oct. 27,1998) and 64 Fed. Reg. 35714 (July 1, 1999), respectively. In a separate case, on May 25, 1999, the District of Columbia Circuit indefinitely stayed the implementation of the NOx SIP Call pending its decision on the merits.

(8) ATA, 1999 WL 300618 at 1.

(9) Mistretta v. U.S., 488 U.S. 361, 371 (1989).

(10) Id. (citing J.W. Hampton, Jr. & Co. v. U.S., 276 U.S. 394 (1928) (Taft, C.J.))

(11) Clinton v. City of New York, 524 U.S. -- (1998), 141 L. Ed. 2d 393,443 (Breyer, J., dissenting) (citing Schechter Poultry and Panama Refining). However, this should not be interpreted to mean that nondelegation has been a nonissue for six decades. In 1980 concurring opinion, Justice Rehnquist (now the Court's Chief Justice), wrote that a portion of the Occupational Safety and Health Act of 1970 violated the nondelegation doctrine. Industrial Union Dept., AFL-CIO v. American Petroleum Institute, 448 U.S. 607 (1980).

(12) The court also vacated the NAAQS for coarse particulate matter for being arbitrary and capricious. Fine particulate matter is defined as particles measuring 2.5 microns or less in diameter. Coarse particulate matter is defined as particles measuring less than 10 microns but more than 2.5 microns in diameter.

(13) ATA, 1999 WL 300618 at 2. Note that both ozone and [PM.sub.2.5] are nonthreshold pollutants, meaning that they will have some adverse impact at any concentration above zero. Therefore, there is no bright-line concentration below which there will be no adverse impacts. Id.

(14) Id. at 1.

(15) Id. at 3.

(16) Id. at 6.

(17) Id. at 8.

(18) Id. at 7.

(19) Supra note 5.

(20) ATA, 1999 WL 300618 at 31.

(21) Supra note 13.

(22) Supra note 18.

(23) Regulatory Impact Analyses for the Particulate Matter and Ozone National Ambient Air Quality Standards and Proposed Regional Haze Rule, pp. ES-11,12, EPA (1997). This is the EPA's estimate for full attainment of the eight-hour standard nationally by 2010. The EPA's estimate for partial attainment by 2010 is considerably less--$1.1 billion per year. Id.

(24) ATA, 1999 WL 300618 at 27. Interestingly, the majority judges (Williams and Ginsburg) were appointees of President Reagan, whereas Judge Tatel was appointed by President Clinton.

(25) Mistretta, 488 U.S. at 373-374.

(26) Id. at 377 and 374.

(27) Id. at 373.

(28) Id. at 372.

(29) Id. at 415 (Scalia, dissenting).

(30) Id. at 416 (Scalia, dissenting) (citing National Broadcasting Co. v. U.S., 319 U.S. 190, 216-217 (1943);New York Central Security Corp. v. U.S., 287 U.S. 12, 24-25 (1932)).

(31) Supra note 5.

(32) Note that the $9.6 billion dollar per year estimate may be conservative, and it does not include the costs to comply with the EPA's new fine particulate matter standard, which was also remanded in the ATA opinion.

(33) FED. R. APP. P. 41(d)(1).

Kevin B. Covington is an associate with Hopping Green Sams & Smith, P.A., Tallahassee. He earned a B.S. in environmental engineering with honors from the University of Florida, and graduated from the University of Florida College of Law with honors. Mr. Covington's law practice covers many aspects of environmental law, but focuses on air quality regulation and permitting, and he advises various industry interests on the impacts of the revised National Ambient Air Quality Standards for ozone and fine particulate matter.

This column is submitted on behalf of the Environmental and Land Use Law Section, Lawrence E. Sellers, Jr., chair, and Melissa Anderson, editor.