American Trucking and the Revival (?) of the Nondelegation Doctrine

Robert W. Adler

Robert W. Adler is a Professor of Law, Wallace Stegner Center for Land, Resources and the Environment, University of Utah College of Law.

[30 ELR 10233]

The decisions of the D.C. Circuit Court of Appeals in American Trucking Ass'n v. U.S. Environmental Protection Agency,¹ which remanded in part and vacated in part the U.S. Environmental Protection Agency's (EPA's) promulgation of revised national ambient air quality standards (NAAQS) for ozone and particulate matter (PM) under the federal Clean Air Act (CAA),² might have significant implications for the future of U.S. air quality law and policy. Some of these possible ramifications were explored in two earlier ELR articles by Professor Craig Oren.³ In addition to these direct impacts on CAA rulemakings, however, there has been considerable speculation about whether American Trucking signals a potential revival of the nondelegation doctrine in U.S. constitutional and administrative law.⁴ That development, in turn, might have far broader implications for the implementation of a panoply of environmental and other regulatory statutes by EPA and other federal agencies.

In his first article, Professor Oren wrote that the holding in American Trucking would be more consistent with a judicial remand under the arbitrary and capricious standard of the Administrative Procedure Act (APA),⁵ seeking a more precise agency explanation of the reasons underlying its regulatory decision.⁶ As a result, he appears to argue that fears about the broader implications of the D.C. Circuit's decisions in American Trucking are overstated.⁷ I agree with Professor Oren that if the court believed that EPA's explanation of the reasons underlying its regulation was inadequate,⁸ a remand under the APA would have been a far more conservative and preferable judicial approach. I am not so sanguine, however, that fears about the potential revival of the nondelegation doctrine are any less legitimate because of an approach the court could have adopted as opposed to the reasoning it actually endorsed.

Moreover, as Professor Oren and others have noted,⁹ the version of the nondelegation doctrine employed in American Trucking, and in an earlier case under the Occupational Safety and Health Act (OSH Act),¹⁰ is significantly different in method from the doctrine used by the U.S. Supreme Court in the 1930s to invalidate several components of President Franklin D. Roosevelt's New Deal legislation. The Court has not reviewed the new approach to the doctrine adopted by some members of the D.C. Circuit. However, EPA recently filed a Petition for Certiorari seeking review of the nondelegation and other aspects of the D.C. Circuit's decision,¹¹ and at least some members of the current Court have indicated sympathy for the nondelegation resurgence in some form. Therefore, if the Court accepts certiorari in this case, the resulting decision could have significant implications for the future of U.S. administrative and constitutional law as applied to environmental and other areas of regulation.

The Nondelegation Holding in American Trucking¹²

In the most conspicuous aspect of its decision, the portion written by Judge Stephen Williams, a panel of the D.C. Circuit [30 ELR 10234] ruled that § 109 of the CAA,¹³ as interpreted and applied by EPA in promulgating primary NAAQS for ground-level ozone and fine particulates, constitutes an unlawful delegation of legislative power from Congress to EPA.¹⁴ In particular, the court held that, although the factors used by EPA in assessing the public health effects of ozone and PM were reasonable, the Agency "appears to have articulated no 'intelligible principle' to channel its application of these factors; nor is one apparent from the statute."¹⁵ However, because it found that the unlawful delegation resulted from EPA's inadequately explained application of the statute as opposed to a facial inadequacy in the statute itself, the court remanded the regulations to the Agency rather than vacating the rules and invalidating § 109 of the statute per se.¹⁶

Section 109 requires EPA to adopt "national primary ambient air quality standards the attainment and maintenance of which in the judgment of the Administrator . . . and allowing an adequate margin of safety, are requisite to protect the public health."¹⁷ For threshold pollutants, that is, pollutants for which there is an identifiable level below which adverse public health effects do not occur, EPA's decisionmaking task is comparatively straightforward. EPA can establish a defensible standard by identifying the threshold effects level, adding an appropriate margin of safety, and promulgating the standard at that level.¹⁸ Both ground-level ozone and fine particulates, however, are nonthreshold pollutants, that is, pollutants for which the best available science indicates that some adverse health effects occur, or might occur, at any pollution level above zero. For such nonthreshold pollutants, one possible approach would be for EPA to set NAAQS at zero. Historically, EPA has declined to take this approach. Moreover, in the context of similar language in the pre-1990 version of CAA § 112 governing hazardous air pollutants, the D.C. Circuit rejected the Natural Resource Defense Council's argument that EPA was required to establish a no-harm standard for vinyl chloride.¹⁹

EPA's more difficult analytical problem, then, is to determine what residual level of harm is "requisite" to protect public health, with an "adequate margin of safety," when some harm might occur at any level of pollution. As the court explained in American Trucking:

For EPA to pick any non-zero level it must explain the degree of imperfection permitted. The factors that EPA has elected to examine . . . pose no inherent nondelegation problem. But what EPA lacks is any determinate criterion for drawing lines. It has failed to state intelligibly how much is too much.²⁰

EPA's rationale for setting the ozone NAAQS at 0.08 parts per million (ppm) (as opposed to 0.07 or 0.09) was that the more certain effects are "transient and reversible" at levels lower than 0.08 ppm, while "the more serious effects with greater immediate and potential long-term impacts on health are less certain . . ."; and that 0.07 would be close to peak background levels in some areas. The court characterized this decision as "nothing more than a statement that lower exposure levels are associated with lower risk to public health."²¹ Somewhat more pejoratively, the court wrote: "EPA's formulation . . . leaves it free to pick any point between zero and a hair below the concentrations yielding London's Killer Fog."²²

On its face, the court's decision might be criticized as oversimplifying and mischaracterizing EPA's rationale for selecting the ozone standard it chose. A more accurate reading of EPA's rationale indicates that the Agency's decision was based on qualitative as well as purely quantitative judgments about the nature as well as incidence of public health risks associated with various ambient levels of ozone.²³ In particular, EPA determined that the nature of [30 ELR 10235] health effects predominant below the adopted standard were "transient and reversible" while those that predominated at higher levels were not. Given the inherently line-splitting nature of EPA's choice, and the impossibility of identifying any single "correct" standard, it is difficult to see how EPA's decision would fail under the "arbitrary and capricious" standard under which such agency decisions are typically reviewed.

Perhaps more troubling is the fact that the court swept away the primary PM standard and the secondary standards for both pollutants under the nondelegation reasoning as well, without even exploring whether EPA's reasoning for that standard complied with the court's "intelligible principle" theory.²⁴ The court did vacate the PM standard in other portions of the decision based on other factors.²⁵ This fact, however, is hardly a proper reason simply to sweep the PM standard along in the nondelegation portion of the opinion absent analysis of whether the Agency committed the same perceived failure to articulate an "intelligible principle" for that pollutant as for ozone.²⁶ For one thing, if the Supreme Court were to reverse the D.C. Circuit's independent basis for vacating the PM standards, the decision would lack a sufficient independent basis for remanding them on nondelegation grounds instead.

Having found EPA's reasoning insufficient to sustain the regulations, the court next asked whether any plausible basis existed to provide the requisite "intelligible principle" it found absent in § 109 of the CAA. After properly noting that prior D.C. Circuit decisions preclude EPA from grounding NAAQS decisions in cost-benefit analysis,²⁷ the court speculated about a possible method for EPA to constrain its choice of the appropriate standard by establishing a "generic unit of harm" to characterize various adverse health effects from air pollution. Given the tremendous difficulty, complexity and uncertainty of characterizing the full range of adverse health effects from various air pollutants in the face of massive amounts of often-conflicting studies,²⁸ this proposal might be viewed as overly simplistic. In fairness, however, apparently the court's intent was merely to identify at least one plausible method to determine appropriate NAAQS using appropriately confined decision criteria, rather than to impose its own criteria on the Agency. As such, the court did not hold that § 109 constitutes an unlawful delegationper se. Rather, it ruled:

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. [citation omitted] . . . If the agency develops determinate, binding standards for itself, it is less likely to exercise the delegated authority arbitrarily . . . . The remand does ensure that the courts not hold unconstitutional a statute that an agency, with the application of its special expertise, could salvage.²⁹

In its Petition for Rehearing, EPA argued that the phrases "requisite to protect the public health" and "an adequate margin of safety," as applied by EPA in its rulemakings, provided sufficient limits on the Agency's discretion to satisfy the nondelegation doctrine.³⁰ The panel declined even to comment on the adequacy of this argument, finding that the Agency had not actually applied any such criteria in its rulemaking decisions.³¹ The full D.C. Circuit narrowly declined to hear the case en banc.³² In late January, EPA filed a Petition for Certiorari in which it asked the Supreme Court to review, inter alia, the nondelegation issue.³³

A Short History of the Nondelegation Doctrine

Basic Principles and Origins

As a matter of constitutional law, the nondelegation principle derives from Article I, § 1 of the U.S. Constitution, which provides: "All legislative Powers herein granted shall be vested in a Congress of the United States."³⁴ The Supreme Court has interpreted this basic pronouncement to mean that Congress may not delegate its legislative power to another branch of government.

As a matter of political theory, the nondelegation concept derives from the ideas of John Locke, who wrote in his Second Treatise of Civil Government:

The power of the legislative, being derived from the people by a positive voluntary grant and institution, can be no other than what that positive grant conveyed, which being only to make laws, and not to make legislators, the legislative can have no power to transfer their authority of making laws and place it in other hands.³⁵

Thus, the nondelegation doctrine is one manifestation of the general notion of separation of powers,³⁶ and democratic governance through elected representatives. Because the people cede inherent legislative power to their representatives through a democratic process of elections, it is not appropriate [30 ELR 10236] for the legislators then to cede that power to nonelected officials who will not necessarily reflect the popular will.

There are two key problems, however, with an absolutist application of this basic principle. First, in a modern world, an elected Congress cannot possibly legislate with sufficient detail to address all of the complex problems that were hardly envisioned by Locke or the authors of the Constitution. An absolutist interpretation would prevent the modern administrative state as we know it. Second, the vesting of legislative power in Article I, § 1 cannot be read in isolation from the placement of executive power in Article II, § 3 of the Constitution, which provides that the President "shall take care that the laws be faithfully executed . . . ." In its most simple terms, the problem is in deciding where lies the line between the enactment and the execution of laws. Chief Justice John Marshall identified this problem early in the history of the republic:

The line has not been exactly drawn which separates those important subjects which must be entirely regulated by the legislature itself, from those of less interest, in which a general provision may be made, and power given to those who are to act under such general provisions to fill up the details.³⁷

The answer to this question is fundamental to administrative as well as constitutional law, as it defines the potential authority of administrative agencies to adopt quasi-legislative regulations, as opposed to simply "executing" legislative rules adopted by Congress.

Pre-New Deal Nondelegation Cases

No federal law was ever invalidated by the Supreme Court on nondelegation grounds prior to the 1930s. The classic statement of the Court's approach to nondelegation issues before the New Deal was made in J.W. Hampton v. United States.³⁸ Establishing the basic principle of law that has remained in place ever since,³⁹ the Court found that no unlawful delegation occurs so long as Congress "lay[s] down by legislative act an intelligible principle to which the person or body authorized to [act] is directed to conform . . . ."⁴⁰ To justify this rule as opposed to an absolute application of separation of powers, Chief Justice Taft wrote:

It is a breach of the national fundamental law if Congress gives up its legislative power and transfers it to the President, or to the judicial branch . . . . This is not to say that the three branches are not co-ordinate parts of one government and that each in the field of its duties may not invoke the action of the two other branches in so far as the action invoked shall not be an assumption of the constitutional field of action of another branch. In determining what it may do in seeking assistance from another branch, the extent and character of that assistance must be fixed according to common sense and the inherent necessities of the governmental co-ordination.

The field of Congress involves all and many varieties of legislative action, and Congress has found it frequently necessary to use officers of the executive branch within defined limits, to secure the exact effect intended by its acts of legislation, by vesting discretion in such officers to make public regulations interpreting the statute and directing the details of its execution, even to the extent of providing for penalizing a breach of such regulations.⁴¹

Part of the rationale for the Court's pragmatic approach to separation of powers was that denying Congress the authority to delegate rulemaking power to Executive Branch agencies would effectively prevent it from exercising its legitimate legislative power with respect to complex modern issues and circumstances.⁴²

Several early cases applied these principles to issues of natural resources and environmental law. For example, in United States v. Grimaud,⁴³ the Court upheld criminal prosecution based on regulations promulgated by U.S. Forest Service requiring permits for grazing on national forest reservations:

In the nature of things it was impracticable for Congress to provide general regulations for these various and varying details of management. Each reservation had its peculiar and special features; and in authorizing the Secretary of Agriculture to meet these local conditions, Congress was merely conferring administrative functions upon an agent, and not delegating to him legislative power.⁴⁴

The same ideas were relied on by a federal circuit court in a decision upholding a legislative predecessor to the Rivers and Harbors Act, specific to New York harbor, that prohibited discharges of refuse without permit from the harbor supervisor and specified the limits and places of discharges:

Obviously, the two houses of congress and the executive could not take an immediate oversight of the dumping . . . and no general law could meet the mischief sought to be avoided . . . . Such a power cannot be denied to [Congress] . . . as it would defeat the only practicable and available means of protecting from nuisances the waters under its jurisdiction, unless may be, by a sweeping enactment prohibiting all deposits in the harbor and within a certain distance thereof.⁴⁵

Both of these cases relied in part on the idea that denying Congress the authority to delegate specific rulemaking power would obviate Congress' own legislative power in complex contexts in which direct and complete legislation was not feasible.

The New Deal Nondelegation Trilogy (1935-1936)

The only three cases in which statutes (or portions thereof) were ever invalidated by the Supreme Court on nondelegation grounds were decided within the space of two years. All three came in the politically charged context of the earliest New Deal legislation, and involved statutes [30 ELR 10237] that were, especially for their times, extremely unusual in scope and method.

In Panama Refining Co. v. Amazon Petroleum Corp.,⁴⁶ the Court invalidated as an unlawful delegation a provision of the Industrial Recovery Act authorizing the President to prohibit transportation in interstate and foreign commerce of petroleum products in violation of any valid state law, regulation, or order. Notably, the Court accepted in full the general principles of law articulated in J.W. Hampton and other prior cases.⁴⁷ However, after examining the text, context and legislative history, the Court found no limiting principles to guide the President in deciding the circumstances under which the authority should be exercised: "Congress has declared no policy, has established no standard, has laid down no rule. There is no requirement, no definition of circumstances and conditions in which the transportation is to be allowed or prohibited."⁴⁸

In the second case in the nondelegation trilogy, A.L.A. Schechter Poultry Corp. v. United States,⁴⁹ the Court invalidated another provision of the National Industrial Recovery Act authorizing the President to approve "codes of fair competition" adopted by trade or industrial associations or groups.⁵⁰ In particular, the Court found that the statute contained no rules defining "fair competition," and that the term (as opposed to "unfair competition") had no basis for limits in common law or other sources.⁵¹ In part, the decision focused on the absence of normal administrative procedures⁵² and the fact that the initial delegation of rulemaking power was to private parties rather than a government agency.⁵³ Given this unprecedented and unconfined delegation of quasi-legislative to a private entity, even Justice Cardozo, who had dissented from the decision in Panama Refining, concurred, writing that "the delegated power is not canalized within banks that keep it from overflowing. It is unconfined and vagrant . . . ."⁵⁴ Similarly, in Carter v. Carter Coal Co.,⁵⁵ the Court invalidated a provision of the Bituminous Coal Conservation Act of 1935 which delegated authority to coal producers and miners to establish minimum wages and maximum hours.

The Post-New Deal Decline of the Nondelegation Doctrine

Since the Carter Coal decision in 1936, no provision of any federal statute has been invalidated by the Court on nondelegation grounds. In each of the cases the Court held that the "intelligible principle" test set forth in J.W. Hampton was met in the face of challenges to statutes with extremely broad delegations of authority confined by remarkably general statutory standards,⁵⁶ some of which bear striking similarity to the language in § 109 of the CAA. For example, the Court held in Touby v. United States,⁵⁷ in the face of the decisions issued over the previous half century, that "one cannot plausibly argue that [an] 'imminent hazard to the public safety' standard is not an intelligible principle."⁵⁸

These principles have been applied by lower courts in nondelegation challenges to provisions of several environmental and natural resources statutes. For example, in United States v. Henry,⁵⁹ the First Circuit upheld the delegation of authority to EPA in the Resource Conservation and Recovery Act (RCRA),⁶⁰ to define characteristics of "hazardous wastes" for purposes of criminal prosecutions, after "taking into account toxicity, persistence, and degradability in nature, potential for accumulation in tissue, and other related factors such as flammability, corrosiveness, and other hazardous characteristics."⁶¹ Notably, this delegation merely identifies the factors that EPA must "take into account" in defining hazardous wastes, as opposed to establishing a substantive principle on which EPA must base its decision. In Christy v. Hodel,⁶² the Ninth Circuit upheld Congress' delegation of authority in the Endangered Species Act (ESA) to the Secretary of the Interior to promulgate "such regulations as he deems necessary and advisable to provide for the conservation of [threatened and endangered] species," where "conservation" is defined as bringing the species "to the point at which the measures provided in this chapter are no longer necessary" and by listing potential conservation actions.⁶³

Notably, none of these Supreme Court or lower court decisions purport to alter the basic legal standard under which statutes are reviewed for nondelegation violations. The cases continue to ask whether Congress articulated an "intelligible [30 ELR 10238] principle" to guide agencies in exercising the delegated discretion. Rather, judicial views on the degree of specificity necessary to satisfy this standard, viewed "according to common sense and the inherent necessities of the governmental co-ordination,"⁶⁴ has evolved to allow Congress to speak in more general terms, and to allow administrative agencies more leeway in interpreting and applying legislative guidance to fit the wider range of more complex modern regulatory scenarios. Accordingly, modern nondelegation cases also focus more on the availability of procedural safeguards than the existence of rigid statutory criteria. Thus, the existence of rulemaking procedures and opportunities for judicial review of agency action provide evidence of an adequate check against unbridled delegation of power to administrative agencies.⁶⁵

The Potential Revival and Reinvention of the Nondelegation Doctrine

Some sources have portrayed the nondelegation holding in American Trucking as something of a bolt out of the blue, a purely isolated anomaly in the face of one-half century of consistent judicial refusal to apply the doctrine to invalidate federal statutes.⁶⁶ The general tenor of these comments is certainly consistent with the nondelegation history outlined above. However, it is not accurate to portray American Trucking as an isolated case. Rather, the decision must be viewed in the context of a minor but, if not rejected by the Supreme Court, potentially significant trend toward not just revival but indeed reinvention of the doctrine in an entirely new form. As explained below, in key respects the doctrine has been resurrected in a modified form that raises different, but potentially no less serious, implications for U.S. administrative and constitutional law and the implementation of federal environmental and other regulatory statutes.

The Benzene Decision

In Industrial Union Department, AFL-CIO v. American Petroleum Institute,⁶⁷ a plurality of Justices on the Court invalidated, under the OSH Act,⁶⁸ a workplace benzene standard promulgated by the Occupational Safety and Health Administration (OSHA). In many ways, the problems of indeterminacy that plagued EPA and the D.C. Circuit in NAAQS rulemaking challenged in American Trucking are similar to those present in the benzene rulemaking and litigation.

The issuance of worker health and safety standards in general and the Benzene case in particular is complicated by the existence of confusing and in ways competing statutory standards that govern OSHA's rulemaking decisions. Section 3(8) of the OSH Act defines the term "occupational safety and health standard" generally as "a standard which requires conditions, or the adoption or use of one or more practices, means, methods, operations, or processes, reasonably necessary or appropriate to provide safe or healthful employment and places of employment."⁶⁹ This definition is somewhat similar to the purely health-based "requisite to protect the public health" language in § 109 of the CAA, although the words "reasonably" and "appropriate" can be construed as imposing more of a balancing requirement than the unadorned "requisite" requirement in the CAA.

Section 6(b)(5) of the Act, however, is more specific with respect to standards governing worker exposure to toxic materials such as benzene:

The Secretary, in promulgating standards dealing with toxic materials or harmful physical agents under this subsection, shall set the standard which most adequately assures, to the extent feasible, on the basis of the best available evidence, that no employee will suffer material impairment of health or functional capacity even if such employee has regular exposure to the hazard dealt with by such standard for the period of his working life. Development of standards under this subsection shall be based upon research, demonstrations, experiments, and such other information as may be appropriate. In addition to the attainment of the highest degree of health and safety protection for the employee, other considerations shall be the latest available scientific data in the field, the feasibility of the standards, and experience gained under this and other health and safety laws.⁷⁰

This language consists of a curious mix of health- and technology-based principles. The words "most adequately assures . . . that no employee will suffer material impairment of health or functional capacity" appear to require OSHA to establish health-based standards, and rather absolute ones at that. The words "to the extent feasible," however, seem to impose a technology- or feasibility-based limit on the stringency of OSHA's otherwise health-based standard. The duality within § 6(b)(5) is, in turn, further complicated by the issue of whether the more specific requirements of that provision in the context of toxic materials or other harmful physical agents controls over the more generic definition in § 3(8), or whether the two terms must be read in tandem.

In the benzene rulemaking, this problem of statutory construction was complicated even further by the fact that benzene, like ozone and PM, was presumed to be a nonthreshold pollutant for which no clear "safe" exposure level could be ascertained.⁷¹ In light of these circumstances, OSHA made two key related statutory interpretation and regulatory policy decisions. First, it decided that workplace toxins were governed largely by the more specific language of § 6(b)(5) of the Act rather than the general definition in § 3(8).⁷² Further, consistent with its general policy regarding nonthreshold carcinogens, for which it simply could not make an assurance that "no employee will suffer material impairment of health or functional capacity," OSHA took the position that § 6(b)(5) required it to adopt a standard at the lowest level "feasible," which it defined as "technologically [30 ELR 10239] achievable at a cost that would not impair the viability" of the industries in question.⁷³

In his plurality opinion, Justice Stevens (joined by Chief Justice Burger and Justices Stewart and Powell) ruled that the statute required OSHA to make a threshold determination, under § 3(8), "before issuing any standard, to determine that it is reasonably necessary and appropriate to remedy a significant risk of material health impairment."⁷⁴ Because no such threshold finding had been made, the Court declined to rule on the remaining dispute about whether § 3(8) further required the agency to determine what standard was "reasonably necessary or appropriate" on the basis of a cost-benefit analysis.⁷⁵ In the process, however, apparently sua sponte or in response to the separate opinion of then-Associate Justice Rehnquist concurring in the judgment, the plurality opinion invoked the nondelegation doctrine in the following limited way:

If the government was correct in arguing that neither § 3(8) nor § 6(b)(5) requires that the risk from a toxic substance be quantified sufficiently to enable the Secretary to characterize it as significant in an understandable way, the statute would make such a "sweeping delegation of legislative power" that it might be unconstitutional under the Court's reasoning in [A.L.A. Schecter and Panama Refining]. A construction of the statute that avoids this kind of open-ended grant should certainly be favored.⁷⁶

In other words, in the Benzene decision a plurality of the Court applied the nondelegation doctrine as a rule of statutory construction (as a corollary to principle that courts should adopt constitutional reading of a statute in face of competing interpretations), as it had done in several earlier decisions since the 1930s.⁷⁷

Justice Rehnquist, concurring in the judgment, instead would have found an unlawful delegation, urging a revival of the "pure" nondelegation doctrine as applied in the New Deal trilogy, as opposed to the statutory construction application used by the plurality. In particular, Justice Rehnquist found that the "health-based/technology-based" duality inherent in § 6(b)(5) of the Act,⁷⁸ especially in conjunction with Congress' failure to qualify or define the term "feasibility,"⁷⁹ rendered the provision as a whole "completely precatory." For nonthreshold pollutants such as benzene (or ozone or particulates), Justice Rehnquist believed that the statute "gives the Secretary absolutely no indication where on the continuum of relative safety he should draw his line."⁸⁰

Justice Rehnquist clearly recognized and accepted the principle that some matters of modern regulation are so inherently complex that practicality demands that Congress can do no more than articulate the basic policy judgments while leaving the details of implementation, however significant, to executive agencies.⁸¹ At bottom, however, what bothered him the most about the standard set forth in § 6(b)(5) was his belief that Congress essentially deferred to the Executive Branch on even the most fundamental issue to be decided: whether occupational health and safety standards for toxic substances should "balance statistical lives and industrial resources or authorize the Secretary to elevate human life above all concerns."⁸² This, in turn, violated the three underlying functions that Justice Rehnquist identified as underlying the nondelegation doctrine: "That important choices of social policy are made by Congress," that necessary delegations of authority are constrained by some "intelligible principle" to guide agency discretion, and that courts may then review exercises of agency discretion against such a determinate set of standards.⁸³

The problems of indeterminacy identified by Justice Rehnquist in his concurring opinion in the Benzene case bear striking parallels to those present in American Trucking. Even given these similarities, however, and even assuming that now Chief Justice Rehnquist's views on the nondelegation doctrine remain identical two decades later, it is not clear whether he would find the same flaws in § 109 of the CAA as he did with § 6(b)(5) of the OSH Act. On the one hand, § 109 does not contain the same dual personality as does § 6(b)(5). In the case of NAAQS, Congress clearly chose health-based over technology- or feasibility-based standards, however difficult that approach might be to apply in practice. It did not leave this basic choice of social or legislative policy to the Executive Branch. On the other hand, unless Congress intended EPA to set NAAQS at zero for nonthreshold pollutants, § 109, like § 6(b)(5), provides "absolutely no indication where on the continuum of relative [30 ELR 10240] safety [the decisionmaker] should draw his line."⁸⁴ Second, because of this parallel, although the majority of the Court in 1980 rejected Justice Rehnquist's call for a revival of the nondelegation doctrine in its pure form, the reasoning in that opinion implicitly underlies the approach taken by Judge Williams both in American Trucking and in the two OSHA "lockout/tagout" cases that preceded it.

The Lockout/Tagout Cases

In International Union, United Automobile, Aerospace & Agricultural Implement Workers of America v. Occupational Safety & Health Administration,⁸⁵ written by the same judge who wrote the nondelegation portion of American Trucking (Judge Stephen F. Williams), a panel of the D.C. Circuit ruled that § 3(8) of the OSH Act, as interpreted and applied by OSHA in a regulation requiring locking and tagging devices on dangerous equipment (the "lockout/tagout" rule), would constitute an unlawful delegation of legislative authority absent a more confined agency interpretation of the statute, and remanded the rule to OSHA to articulate such a principle. The court subsequently approved the Agency's more restrictive statement of principles in interpreting the statute as sufficient to withstand nondelegation scrutiny.⁸⁶ The Lockout/Tagout cases are significant to this analysis in both directions. First, the decisions referred back to the application of the nondelegation by the Court plurality in the Benzene case.⁸⁷ Second, Judge Williams used the same basic analysis in the Lockout/Tagout decisions as in his subsequent opinion in American Trucking.⁸⁸

As a preliminary matter, the court agreed with OSHA that the lockout/tagout regulation, which addressed equipment safety as opposed to "toxic materials or harmful physical agents," was not governed by the specific language of § 6(b)(5).⁸⁹ Hence, OSHA's decision was not governed directly by the Court's decisions regarding either the benzene or cotton dust rulemakings, both of which involved § 6(b)(5) standards. However, in Benzene the Court did require that any OSH Act standard must be justified by a threshold requirement under § 3(8) that the standard is "reasonably necessary and appropriate to remedy a significant risk of material health impairment."⁹⁰

In the lockout/tagout regulation, OSHA interpreted of the "reasonably necessary or appropriate" standard in § 3(8) as allowing workplace safety standards governing any "significant risk" so long as the standards are "technologically and economically feasible."⁹¹ The court held, with reasoning identical to that later used in American Trucking, that this statutory interpretation provided so little limit on agency discretion that it would constitute unlawful delegation if upheld: "The upshot is an asserted power, once significant risk is found, to require precautions that take the industry to the verge of economic ruin (so long as the increment reduces a significant risk . . .), or to do nothing at all. All positions in between are equally valid."⁹²

The court then found that § 3(8) could withstand a nondelegation challenge by interpreting the words "reasonably necessary or appropriate" as requiring a cost-benefit analysis.⁹³ However, Judge Williams did not adopt this narrower reading of the statute as a tool of statutory construction. Instead, wrote: "We hold only that cost-benefit is a permissible interpretation of § 3(8). Given the ambiguity inherent in that section, there may be other interpretations that conform to nondelegation principles. Accordingly we remand to OSHA . . . ."⁹⁴

On remand, OSHA rejected a formal cost-benefit analysis in favor of a statutory interpretation that required it to choose a "high degree of employee protection," but to "assure that the costs of safety standards are reasonably related to their benefits."⁹⁵ The court upheld this interpretation as placing sufficient limits on agency implementation of its delegated power.⁹⁶

Postscript: South Dakota v. U.S. Department of the Interior

At least one other recent court of appeals panel has invalidated a federal statute on nondelegation grounds. In South Dakota v. U.S. Department of the Interior,⁹⁷ a panel of the Eighth Circuit invalidated as an unlawful delegation a provision of the Indian Reorganization Act authorizing the Secretary of the Interior "in his discretion . . . to [purchase lands] . . . for the purpose of providing land for Indians."⁹⁸ In particular, the panel found:

There are no perceptible "boundaries," no "intelligible principles," within the four corners of the statutory language that constrain this delegated authority—except that the acquisition must be "for Indians." It delegates unrestricted power to acquire land from private citizens for the private use and benefit of Indian tribes or individual Indians.⁹⁹

Four points about this decision are worthy of note. First, obviously the D.C. Circuit is not alone in its recent invocation of the nondelegation doctrine. The Lockout/Tagout decisions were cited in South Dakota.¹⁰⁰

Second, in South Dakota the Eight Circuit found that it was required to accept the Agency's interpretation of the statute in light of the circumstances in the case, and thus held the statute unconstitutional rather than remanding the matter [30 ELR 10241] to the Agency. Despite the existence of legislative history that apparently would have provided a narrower reading of the statute, the panel explained that the Agency had "interpreted the statute as broadly as possible, consistent with its literal language."¹⁰¹ Moreover, because the Eighth Circuit had previously approved that interpretation,¹⁰² the panel believed that it was bound by the broader Agency reading of the statute. It is not entirely clear whether this panel would have employed Judge Williams' "agency remand" version of the nondelegation doctrine under circumstances analogous to the Lockout/Tagout or American Trucking cases.¹⁰³ In any event, the Eighth Circuit's procedure appears to have exalted the need to follow precedent within the circuit over the cardinal rule that courts should, wherever possible, construe statutes in ways that avoid constitutional violations.

Third, the Secretary moved to dismiss the case on grounds that the purchase in question was "committed to agency discretion by law" under the APA.¹⁰⁴ The Supreme Court has ruled that this statutory exception to judicial review is "a very narrow [one]," which applies only when "statutes are drawn in such broad terms that in a given case there is no law to apply."¹⁰⁵ At the same time, of course, in the nondelegation context it has indicated that the availability of judicial review helps to insulate statutes against constitutional challenges.¹⁰⁶ These competing pronouncements pose another paradox: How can a statute be drawn so broadly that there is "no law to apply," such that it is entirely committed to agency discretion, and not constitute an unlawful delegation?¹⁰⁷ Presumably any "intelligible principle" sufficient to satisfy nondelegation scrutiny would provide at least some grounds for judicial review. Conversely, if Congress articulates an "intelligible principle," or if such a principle can fairly be inferred from the statute, there necessarily is some law to apply. Indeed, the government's position on the "committed to agency discretion" issue appears to have influenced the Eighth Circuit panel in finding that the statute constituted a sufficiently unbridled delegation of legislative authority to violate nondelegation principles.¹⁰⁸

In the face of the minor but real resurgence of the nondelegation doctrine, this paradox might affect the willingness of federal agencies to invoke the "committed to agency discretion" exception to judicial review of final agency actions. If an agency argues that its action is not reviewable because it is committed to agency discretion by law, arguably it sets itself up for a nondelegation argument.

Fourth, the subsequent case history in South Dakota provides some small indication of the possible reaction of three current members of the Court on the nondelegation issue raised by American Trucking.¹⁰⁹ The government petitioned for certiorari in South Dakota as well, but reversed its position on the APA reviewability issue. The Court granted certiorari but immediately vacated and remanded for reconsideration,¹¹⁰ over strong dissent by Justices Scalia, O'Connor and Thomas.¹¹¹ Those three Justices objected to the fact that the procedure allowed the federal government to have two "bites" at the statutory interpretation "apple". If it loses on its initially broad reading of a particular statute, it can always come back with a narrower statutory construction and litigate the issue anew.¹¹² Of course, the same criticism would apply to the nondelegation remand procedure adopted by Judge Williams in Lockout/Tagout and American Trucking. Under this process, the government has every incentive to adopt as broad a reading of a statute as possible. If it prevails in a nondelegation challenge, it will retain maximum room for future policy discretion. If it loses, the worst that happens is that it has another opportunity to adopt a more constricted reading of the law.

Critique and Analysis: The Nondelegation/Chevron Paradox

The Lockout/Tagout and American Trucking cases are notable because they represent rare instances in which any court since 1936 has invoked the nondelegation doctrine as anything other than a rule of statutory construction. The approach taken in both these cases is significant as well because, at least as applied by Judge Williams in these two sets of opinions, it represents a fundamental shift in the manner in which the doctrine is applied.

J.W. Hampton and other nondelegation cases through the New Deal operated according to the following rule: No unlawful delegation will be found so long as Congress articulates an "intelligible principle" to guide and constrain the delegated power. Industrial Union (Benzene) and other post-1930s cases shifted this doctrine to provide that no unlawful [30 ELR 10242] delegation will be found so long as Congress states or a reviewing court can find a sufficiently narrow interpretation of the statutory language to constitute an intelligible principle to guide and constrain the delegated power. Lockout/Tagout and American Trucking represent still a third, new approach to the doctrine which has never been reviewed, much less sanctioned, by the Court. Under this new approach, no unlawful delegation will be found so long as the agency articulates an intelligible principle to guide and constrain its delegated power.

At first blush, Judge Williams' revision of the nondelegation doctrine seems entirely counterintuitive. If the basic purpose underlying the doctrine is to ensure that at least the most basic choices of social and legislative policy are made by elected representatives rather than unelected government officials, and that Congress articulates a sufficiently "intelligible principle" to guide agency discretion and judicial review of agency decisions, it is difficult to see how those purposes are fulfilled by requiring the agency to articulate the requisite guiding principles rather than the legislature. Under more traditional standards of judicial review under the APA, the agency's obligation is simply to articulate a sufficient rationale for the specific rulemaking or other action before it, and not to make broad pronouncements of legislative policy as a substitute for adequate legislative criteria. Indeed, Judge Williams himself found no inherent nondelegation problem with the factors EPA identified as relevant to its NAAQS decisions; rather, he found simply that EPA had failed to articulate properly the criteria it used to determine how much pollution was too much.¹¹³

Apparently, however, the approach chosen by Judge Williams attempts to reconcile his application of the nondelegation doctrine with the Chevron doctrine announced by the Court four years after the Benzene decision.¹¹⁴ Under Chevron, U.S.A., Inc. v. Natural Resources Defense Council,¹¹⁵ courts must adopt statutory constructions that are clear and unambiguous based on statutory language and legislative history, where "Congress has directly spoken to the precise question at issue"¹¹⁶; but where the statute remains ambiguous, courts must defer to any "permissible construction of the statute" adopted by the responsible agency.¹¹⁷ No linkage to Chevron was identified by express citation in either the Lockout/Tagout opinions or in the initial opinion in American Trucking. However, as the D.C. Circuit later made clear in a "final word" in the Per Curiam Opinion on Rehearing in American Trucking:

To choose among permissible interpretations of an ambiguous principle, of course, is to make a policy decision, and since Chevron it has been clear that "the responsibilities for assessing the wisdom of such policy choices . . . are not judicial ones." [citation omitted] Accordingly, just as we must defer to an agency's reasonable interpretation of an ambiguous statutory term, we must defer to an agency's reasonable interpretation of a statute containing only an ambiguous principle by which to guide its exercise of delegated authority . . . . In sum, the approach of the Benzene case, in which the Supreme Court itself identified an intelligible principle in an ambiguous statute, has given way to the approach of Chevron.¹¹⁸

The relevance of Chevron raises important questions about the propriety of Judge Williams' new application of the nondelegation doctrine. It also suggests a series of tensions or inconsistencies among various aspects of modern jurisprudence in the area of administrative law.

Under Chevron, legislation falls into one of two categories (whether intended as such by Congress or not). In the first, so-called step one Chevron cases, Congress spoke directly to the precise question at issue, whereupon a court's only duty is to determine whether the agency's decision is consistent with that manifest legislative intent. If the reviewing court decides that an agency's reading or application of the statute is correct, that is, consistent with Congress' expressed intent, it is upheld. If it is not, it is reversed in favor of the statutory construction the court believes Congress intended.

Neither Judge Williams' "remand to the agency" version of the nondelegation doctrine nor the use of the doctrine as a canon of statutory construction make particular sense under the Chevron "step one" scenario. Of course, a true "step one" case is not likely to raise nondelegation issues, at least not frequently. If Congress spoke directly to the issue at hand, it is somewhat difficult to imagine that the statute would not contain some "intelligible principle" adequate to meet the standards of modern nondelegation jurisprudence. In essence, Congress would have to say: "We considered this issue directly, made no decision, provided no guidance whatsoever, and left the matter entirely to agency discretion." In such an unlikely case, however, presumably the statute itself should simply be deemed unconstitutional. Allowing an agency to cure such a blatant statutory defect by articulating its own "intelligible principle" would violate the very premise of the nondelegation doctrine, that at least the most basic choices of social and legislative policy must be made by the legislature, even if it leaves significant room for agencies to fill in the gaps and apply those principles under diverse circumstances. Likewise, allowing a reviewing court to cure a defective statute by using the nondelegation doctrine as a canon of statutory construction, in the face of evidence that Congress intentionally chose not to include sufficient guiding principles in the law, would also raise the very concerns that underlie the nondelegation doctrine. The only difference is that the unlawful delegation of legislative power would flow to the Judicial Branch rather than to the Executive Branch.

The more likely but also more difficult nondelegation cases arise under Chevron "step two," in which Congress has not spoken directly to the issue at hand. In such cases, courts must defer to any permissible agency reading of the statute, as opposed to the construction that would be preferred by the court if it were interpreting the statute ab initio.¹¹⁹ [30 ELR 10243] The touchstone of this inquiry is whether the agency's reading and application of the statute, under the specific circumstances before the agency and then the court, is permissible in light of the statute as a whole and its legislative history. Agency rather than judicial interpretations of complex administrative statutes are preferred because the agency has special expertise as well as superior experience with the policy issues at hand through its history of ongoing application and interpretation of the statutory regime as a whole.¹²⁰ In short, the very premise of Chevron "step two" is that Congress has delegated authority to the Executive Branch to make difficult policy decisions that were impossible to resolve at the raw, context-poor legislative stage, or that Congress lacked sufficient expertise or institutional infrastructure to address. Clearly, the Court does not believe that such delegations of quasi-legislative decisionmaking power are invalid per se, or it would not have created the Chevron "step two" category.

The "canon of statutory construction" application of the nondelegation doctrine can be applied in concert with Chevron "step two" analysis. By contrast, Judge Williams' "agency remand" version of the nondelegation doctrine appears to make little sense under Chevron. While courts must defer to any permissible agency interpretation of an ambiguous statute, an agency interpretation that would convert an otherwise appropriately bounded delegation to one that lacks proper constraints obviously could not be considered "permissible." If only one such permissible interpretation remained, the court would be free to use the nondelegation canon of construction to select that reading in lieu of the impermissible one chosen by the agency. If more than one constitutionally permissible interpretation were possible, the matter could be remanded to the agency to make this basic policy choice. However, the remand would not be for purposes of deciding whether the statute itself violated the non-delegation doctrine. Instead, it would be to allow the agency to exercise the discretion delegated in the statute, but with the impermissible statutory construction now excluded.

Viewed in this context, it is difficult to see what purpose is served by remanding an issue to an administrative agency in order to determine whether the constitutional nondelegation doctrine is satisfied. In a "step two" context, the nondelegation doctrine is satisfied where Congress has included adequate standards in the statute, augmented by its legislative history, to guide an agency in its choices among competing, permissible readings of the statute. Courts should readily be able to decide whether such standards exist on the face of the statute and its legislative history, particularly given the long history of Supreme Court jurisprudence allowing Congress to meet the nondelegation requirement with exceedingly general statements of legislative policy.

It is notable in this regard that the court in American Trucking made no effort to look beyond the raw language of CAA § 109(b)(1) in search of additional sources of congressional guidance as to what EPA should consider in deciding what levels of air quality are "requisite to protect the public health."¹²¹ Of course, as noted earlier, the words "requisite to protect the public health . . . with an adequate margin of safety" provide at least as much guidance as many other statutes that have been upheld by the Court against a nondelegation challenge. Unlike the language of § 6(b)(5) in the Benzene case, for example, § 109 does not beg the question of whether NAAQS are health- or technology-based. They are clearly the former. Similarly, Congress plainly decided that, in choosing between standards that err on the side of public health or on the side of economic savings, EPA should err on the side of public health by providing an adequate safety margin.

However, even if the language of delegation in § 109 itself were inadequate to meet nondelegation scrutiny, additional legislative guidance is provided elsewhere in the statute and in its legislative history. Most notably, the court in American Trucking ignored the fact that NAAQS developed under § 109 are guided as well by air quality criteria under § 108 of the statute.¹²² For example, § 108(a)(1) provides:

For the purpose of establishing . . . ambient air quality standards, the Administrator shall . . . publish . . . a list which includes each air pollutant —

(A) emissions of which, in his judgment, cause or contribute to air pollution which may reasonably be anticipated to endanger public health or welfare . . . .¹²³

Section 108(a)(2), in turn, requires that:

Air quality criteria for an air pollutant shall accurately reflect the latest scientific knowledge useful in indicating the kind and extent of all identifiable effects on public health or welfare which may be expected from the presence of such pollutant in the ambient air, in varying quantities.¹²⁴

Moreover, this significant statutory guidance is augmented by ample legislative history that has been extensively relied on by previous panels of the D.C. Circuit.¹²⁵

It is true that Congress did not instruct EPA exactly where to draw the line in that most difficult of all health-based rulemaking decisions, the case of nonthreshold pollutants for which any pollution level above zero might cause some detectable health effects in some individuals. Unlike the language of OSHA § 6(b)(5), however, Congress did not leave EPA to decide whether its choice should be based on economic or technological factors as opposed to human health. It chose health. Nor did Congress leave it to EPA to decide whether its decision should rest on a cost-benefit analysis, since considerations of cost are plainly precluded by the statute. Rather, Congress instructed EPA, through the language of §§ 108 and 109 and related legislative history, to adopt health-based standards requisite to protect public health, with an adequate margin of safety, based on "the latest scientific knowledge" and after considering "all identifiable effects on public health and welfare." Precisely where that line should be drawn in the case of specific air pollutants, in the face of complex and voluminous scientific data, is precisely the type of agency policy choice that the Court [30 ELR 10244] has indicated repeatedly can properly be delegated to administrative agencies.¹²⁶

There may be instances, of course, in which a reviewing court believes the agency decision falls outside of the guidelines included in the statute and its legislative history. In the case of NAAQS, for example, this might occur if EPA promulgated standards significantly below levels at which public health impacts had been detected; or if EPA established NAAQS at levels above those at which significant public health effects occurred, based on considerations of economic or technological feasibility. The error would, however, be one of improper application of the relevant legislative principles, rather than unlawful delegation. Similarly, there might be situations in which EPA fails to articulate adequate explanations for the choices it made in setting NAAQS or other environmental standards, and which would require a remand instructing the Agency to explain its reasoning more fully.¹²⁷ Here, however, the error would be a violation of the Agency's duty under the APA to explain the reasons underlying its rulemaking decision, and not a violation of Congress' duty to properly constrain delegations of authority by articulating an "intelligible principle" with which to guide the Agency's decision.

Conclusion

In American Trucking and the Lockout/Tagout cases that preceded it, Judge Williams conflated Congress' obligation to provide sufficient "intelligible principles" to guide agency rulemakings with the agency's independent obligation under the APA to explain adequately the basis for individual rulemaking decisions. The purposes of the former requirement are to ensure that the elected Congress, rather than unelected public officials, make the most basic choices of social and legislative policy; that delegations of authority to administrative agencies to implement those basic policies are subject to reasonable boundaries defined by the Legislative Branch; and that the Judicial Branch has some criteria to apply in deciding whether the agency properly implemented the statute. Courts should be able to determine whether such "intelligible principles" exist based on a review of the statute as a whole, along with its legislative history and other contextual information, independent of agency interpretations or explanations.¹²⁸ The purpose of the latter requirement is simply to ensure that the agency's exercise of the delegated discretion fits within the boundaries setby Congress, i.e., that it is not "arbitrary, capricious, an abuse of discretion, or otherwise not in accordance with law."¹²⁹ This determination requires a court to review the reasons provided by the agency on the administrative record,¹³⁰ and might require a remand in cases in which the proffered explanation is inadequate to support judicial review.¹³¹ The remand, however, is for purposes of deciding whether the agency properly applied the standards set forth by the legislature, not for deciding whether the statute itself is unconstitutional.

Chevron does not alter this dynamic. Chevron presumes the existence of at least one constitutionally permissible interpretation of the relevant statutory language. In the rare case in which a statute is facially invalid on nondelegation grounds, the court would never even reach the Chevron issue. Where only one constitutionally permissible interpretation of the statute is possible, i.e., where Congress has spoken directly to the precise question at issue, the court must effectuate that interpretation of the law. Where multiple permissible readings exist, Chevron "step two" merely addresses one type of situation in which Congress, by leaving interpretive gaps in the overall statutory regime, has delegated some policymaking authority to the agency responsible for executing the law. So long as the agency's reading of the statute is permissible, and the statute and the legislative history provide the agency with some "intelligible" guidance in reaching that decision, neither a constitutional nor a statutory violation occurs.

The world of environmental regulation is exceedingly complex. Agency decisions are made in the face of massive administrative records in which the "answers" to the most difficult questions are fraught with scientific uncertainty and conflicting data, studies, and other information. In most cases, no single "correct" answer exists. Efforts to bind agencies to precise, consistent principles are evasive. Even much-touted procedures such as risk assessment and cost-benefit analysis rely on a wide range of disputed assumptions and other variables, differences in which can generate vastly different answers to a single question.¹³² No statement of legislative or administrative guidance can account for these complexities and variables. Yet in order for the system to work as Congress intended, someone (here, the Administrator of EPA) is asked to draw a line based on the best available information under the circumstances. Such delegation of authority is essential if Congress "is to exercise the power at all" to provide for national environmental standards "according to common sense and the inherent necessities of the governmental co-ordination."¹³³

[Editors' postscript: A discussion of the March 3, 2000 decision in State of Michigan v. U.S. EPA, in which a panel of the D.C. Circuit rejected a nondelegation challenge to an EPA rulemaking, may be found at www.eli.org (go to ELR Password Protected Area, then to "News & Analysis," then to "Articles").]

1. 175 F.3d 1027, 29 ELR 21071 (D.C. Cir. 1999), panel opinion modified & reh'g en banc denied, 195 F.3d 4, 30 ELR 20119 (D.C. Cir. 1999).

2. 42 U.S.C. §§ 7401-7671q, ELR STAT. CAA §§ 101-618.

3. Craig N. Oren, Run Over by American Trucking Part I: Can EPA Revive Its Air Quality Standards?, 29 ELR 10653 (Nov. 1999) [here-inafter Oren I]; Craig N. Oren, Run Over by American Trucking Part II: Can EPA Implement Revised Air Quality Standards?, 30 ELR 10034 (Jan. 2000) [hereinafter Oren II].

4. See Oren I, supra note 3, at 10654; Cass R. Sunstein, Is the Clean Air Act Constitutional?, 98 MICH. L. REV. 303 (1999).

5. 5 U.S.C. § 706(2)(A), available in ELR STAT. ADMIN. PROC.

6. See Oren I, supra note 3, at 10656-58.

7. Id.

8. Evaluating the merits of EPA's controversial revisions to NAAQS for ozone and PM are beyond the scope of this Article.

9. See Oren I, supra note 3, at 10656; Sunstein, supra note 4, at 309.

10. See International Union, United Auto., Aerospace & Agric. Implement Workers of Am. v. Occupational Safety & Health Admin., 938 F.2d 1310 (D.C. Cir. 1991) (Lockout/Tagout I).

11. Browner v. American Trucking Ass'ns, No. 99-1257, Petition for a Writ of Certiorari (filed Jan. 27, 2000).

12. For a description of the numerous other holdings in the case regarding various aspects of EPA's rulemakings, see Oren I and Oren II, supra note 3. Briefly, in other portions of the opinion the panel held that: (1) EPA may not consider costs in setting of revising NAAQS, see American Trucking, 175 F.3d at 1040, 29 ELR at 21074 (citing Natural Resources Defense Council v. EPA, 902 F.2d 962, 20 ELR 20891 (D.C. Cir. 1990), modified, 921 F.2d 326 (D.C. Cir. 1991), cert. denied, 498 U.S. 1082 (1991); American Petroleum Inst. v. Costle, 665 F.2d 1176, 11 ELR 20916 (D.C. Cir. 1981), cert. denied, 455 U.S. 1034 (1982); Lead Indus. Ass'n v. EPA, 647 F.2d 1130, 10 ELR 20643 (D.C. Cir.), cert. denied, 449 U.S. 1042 (1980)); (2) EPA may not consider the financial impacts on the Abandoned Mine Reclamation Act traceable to costs of complying with NAAQS, 175 F.3d at 1041, 29 ELR at 21074; (3) EPA need not comply with the National Environmental Policy Act (NEPA), 42 U.S.C. § 4332, ELR STAT. NEPA § 102, in setting NAAQS, 175 F.3d at 1041-43, 29 ELR at 21074-75; (4) there is no cause of action to enforce the Unfunded Mandates Reform Act, 175 F.3d at 1043, 29 ELR at 21075; (5) EPA properly certified that the rules would not have a significant impact on a substantial number of small entities for purposes of compliance with the Regulatory Flexibility Act, as amended by the Small Business Regulatory Enforcement Fairness Act, 5 U.S.C. §§ 601 et seq., 175 F.3d at 1043-45, 29 ELR at 21075-76; (6) the 1990 CAA Amendments (Part D, Subpart 2, 42 U.S.C. §§ 7511-7511f, ELR STAT. CAA §§ 181-185B) do not alter EPA's authority and duty to revise the ozone NAAQS; however, by establishing a specific timetable for attainment of the existing ozone NAAQS, the amendments constitute the exclusive authority for enforcing any ozone NAAQS (rendering the revised standards essentially unenforceable). 175 F.3d at 1049, 29 ELR at 21078. On rehearing, the panel modified this portion of the opinion, holding that EPA can enforce the revised ozone standards under the "as expeditiously as practicable" language in Part D, Subpart 1, American Trucking, 195 F.3d at 9-10, 30 ELR at 20121; (7) in estimating the health effects of ground-level ozone, EPA is required to consider positive health benefits (by acting as a shield from the sun's ultraviolet rays), 175 F.3d at 1052-55, 29 ELR at 21078-79; (8) EPA was arbitrary and capricious in finding that fine particulates act as an indicator for coarse particulates, 175 F.3d at 1052-55, 29 ELR at 21079-81; (9) particulates smaller than 2.5 microns do not constitute a "new" pollutant for purposes of NAAQS promulgation procedures, 175 F.3d at 1055, 29 ELR at 21080; (10) EPA may establish NAAQS based on epidemeological studies, and is not required to identify the biological mechanism for harm, 175 F.3d at 1055-56, 29 ELR at 21080-81; and (11) secondary NAAQS need not address all adverse visibility impacts, 175 F.3d at 1056, 29 ELR at 21081.

13. 42 U.S.C. § 7409, ELR STAT. CAA § 109.

14. 175 F.3d at 1034-40, 29 ELR at 21071-74.

15. Id. at 1034, 29 ELR at 21071.

16. Id. at 1038, 29 ELR at 21073:

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.

17. 42 U.S.C. § 7409(b)(1), ELR STAT. CAA § 109(b)(1) (emphasis added). Primary ambient air quality standards may be revised according to the same criteria. Id. National secondary ambient air quality standards "shall specify a level of air quality the attainment and maintenance of which in the judgment of the Administrator . . . is requisite to protect the public welfare from any known or anticipated adverse effects associated with the presence of such air pollutant in the ambient air." Id. § 7409(b)(2), ELR STAT. CAA § 109(b)(2).

18. However, because the appropriate size of the "margin of safety" is not specified in the statute, conceivably the same indeterminacy argument discussed below could be made with respect to the margin of safety as applied to the effects level for nonthreshold pollutants.

19. Natural Resources Defense Council v. EPA, 824 F.2d 1146, 17 ELR 21032 (D.C. Cir. 1987) (en banc) (holding, in part, that EPA was not required to prohibit emissions of vinyl chloride, a nonthreshold carcinogen, under prior version of § 112 of the CAA (dealing with hazardous air pollutants)).

20. 175 F.3d at 1034, 29 ELR at 21072.

21. Id. at 1035, 29 ELR at 21072.

22. Id. at 1037, 29 ELR at 21073.

23. See id. at 1058-60, 29 ELR at 21081-82 (Tatel, J., dissenting in part). EPA's decision was also designed to avoid setting an ambient standard that would be impossible to meet in some parts of the country based on natural background levels. Id. The validity of that reasoning is more questionable, since health-based standards are not supposed to consider such factors. Id. Perhaps a more appropriate response to this problem would be to set ambient standards at levels that are "requisite to protect the public health," but to allow variances in those specific airsheds where natural background levels demonstrably exceed the chosen standard.

24. Id. at 1040, 29 ELR at 21074.

25. Id. at 1053-55, 29 ELR at 21079-80 (finding that EPA's use of PM smaller than 10 microns (PM[10]) as an indicator of coarse particulates was arbitrary and capricious).

26. See id. at 1060-61, 29 ELR 21082-83 (Tatel, J., dissenting in part).

27. Id. at 1038, 29 ELR at 21073.

28. See generally Colloquium: Science and Public Policy: New Ambient Air Quality Standards Under the Clean Air Act, 16 PACE ENVTL. L. REV. 15-95 (1998).

29. 175 F.3d at 1038, 29 ELR at 21073.

30. 195 F.3d at 6-7, 30 ELR at 20119-20.

31. Id.

32. Id. at 13, 30 ELR at 20122 (per curiam). Five judges would have granted the petition (Chief Judge Edwards and Judges Silberman, Rogers, Tatel, and Garland). Four voted to deny the petition (Williams, Ginsburg, Sentelle, and Randall). However, because Judges Wald and Henderson did not participate in the matter, and a majority of the judges sitting on the court rather than a majority of those voting must vote to grant a petition for rehearing en banc, INTERIM CIRCUTT RULES OF THE U.S. COURT OF APPEALS FOR THE DISTRICT OF COLUMBIA CIRCUIT Rule 35(a), the petition was denied.

33. The petition also asks the Court to review whether the D.C. Circuit Court of Appeals exceeded its jurisdiction in reviewing the ozone standard implementation issue based on language in EPA's preliminary preamble statements; and to review the ozone implementation issue on the merits.

34. See, e.g., Touby v. United States, 500 U.S. 160 (1991); Panama Ref. Co. v. Ryan, 293 U.S. 388, 421 (1935) ("The Congress manifestly is not permitted to abdicate or to transfer to others the essential legislative functions with which it is thus vested.").

35. See JOHN LOCKE, SECOND TREATISE ON CIVIL GOVERNMENT §§ 135-137, 220-222 (C.B. Macpherson ed., 1980) (1690).

36. See Mistretta v. United States, 488 U.S. 361, 371 (1989). See also CHARLES DE SECONDAT, MONTESQUIEU, THE SPIRIT OF THE LAWS 157 (Ann M. Cohler et al. eds. & trans., 1989); W.B. GWYN, THE MEANING OF THE SEPARATION OF POWERS (1965).

37. Wayman v. Southard, 23 U.S. 1 (1825).

38. 276 U.S. 394, 406-07 (1928) (upholding delegation of authority to the President to vary tariff rates set by Congress to reflect changing conditions).

39. See Touby, 500 U.S. at 165.

40. 276 U.S. at 409 (emphasis added).

41. Id. at 406 (emphasis added).

42. With respect to tariffs in particular, the Court wrote: "If Congress were to be required to fix every rate, it would be impossible to exercise the power at all." Id. at 407.

43. 220 U.S. 506 (1911).

44. Id. at 516.

45. United States v. Romard, 89 F. 156, 157 (C.C.N.Y. 1898) (emphasis added).

46. 293 U.S. 388 (1935) (invalidating provision of the statute in the context of its application to the Live Poultry Code adopted in the New York City metropolitan area).

47. Id. at 428-29.

48. Id. at 430.

49. 295 U.S. 495 (1935).

50. Id.

51. Id. at 531-32.

52. Id. at 533-34.

53. Id. at 537.

54. Id. at 551.

55. 298 U.S. 238 (1936). Here, however, in a hint of the doctrinal change within the Court in the ensuing years, Justices Cardozo, Brandeis, and Stone dissented on grounds that the statute provided adequate standards to limit the statute's delegation of authority. Id. at 332-33 (itemizing statutory criteria to which the wage and price controls must conform).

56. E.g., Touby v. United States, 500 U.S. 160 (1991) (Controlled Substances Act authority to Attorney General to identify "scheduled" substances where "necessary to avoid an imminent hazard to the public safety") (emphasis added); Mistretta v. United States, 488 U.S. 361 (1989) (upholding delegation of authority to U.S. Sentencing Commission to promulgate sentencing guidelines based on congressionally defined goals and purposes of sentencing); Lichter v. United States, 334 U.S. 742 (1948) (authority to determine "excessive profits") (emphasis added); American Power & Light Co. v. Securities & Exchange Comm'n, 329 U.S. 90 (1946) (authority to prevent unfair or inequitable distribution of voring power among security holders) (emphasis added); Yakus v. United States, 321 U.S. 414 (1944) (authority to fix "fair and equitable commodity prices") (emphasis added); Federal Power Comm'n v. Hope Natural Gas Co., 320 U.S. 591 (power to set "just and reasonable rates") (emphasis added); National Broadcasting Co. v. United States, 319 U.S. 190 (1943) (Federal Communications Commission authority to regulate broadcast licensing "as public interest, convenience or necessity" require) (emphasis added).

57. 500 U.S. 160 (1991).

58. Id. at 165.

59. 136 F.3d 12, 28 ELR 21048 (1st Cir. 1998).

60. 42 U.S.C. §§ 6901-6992k, ELR STAT. RCRA §§ 1001-11011.

61. Id. § 6921, ELR STAT. RCRA § 3001.

62. 857 F.2d 1324, 18 ELR 21430 (9th Cir. 1988).

63. 16 U.S.C. §§ 1532, 1533(d), ELR STAT. ESA §§ 3, 4(d). See also United States v. Lee, 937 F.2d 1388 (9th Cir. 1991) (upholding Lacey Act prohibition against trading in fish and wildlife "in violation of any foreign law" against challenge that the act unconstitutionally delegates legislative power to foreign governments).

64. J.W. Hampton, supra note 38, 276 U.S. at 406.

65. See American Power & Light Co. v. SEC, 329 U.S. 90 (1946); Touby, 500 U.S. at 170 (Marshall, J., concurring).

66. E.g., Kevin B. Covington, Federal Appellate Court Revives the Nondelegation Doctrine in Environmental Case, 73-OCT Fla. B.J. 81 (1999).

67. 448 U.S. 607, 10 ELR 20489 (1980).

68. 29 U.S.C. §§ 651 et seq.

69. Id. § 652(8).

70. Id. § 655(b)(5) (emphasis added).

71. 448 U.S. at 623-24.

72. Id. at 639. OSHA's view was that § 3(8) had "no legal significance" under these circumstances "or at best merely requires that a standard not be totally irrational." Id.

73. Id.

74. Id.

75. Id.

76. Id. at 646.

77. See also Mistretta v. United States, 488 U.S. 361, 373 n.7 (1989) (applying nondelegation doctrine by "giving narrow constructions to statutory delegations that might otherwise be thought to be unconstitutional").

78. 448 U.S. at 675; see supra note 67 and accompanying text.

79. 448 U.S. at 681-82. Notably, Justice Rehnquist contrasted the unqualified "to the extent feasible" language in the OSH Act, with contemporaneously enacted provisions of the CAA, which specified that feasibility meant technological or economic feasibility. Id. at 682 & n.5. The Court ruled the following year that "feasible" in the context of § 6(b)(5) in fact means technologically and economically feasible. American Textile Mfrs. Inst., Inc. v. Donovan, 452 U.S. 490 (1981) (the "cotton dust" case).

80. 448 U.S. at 675.

81. Id. at 675 accepting the principle that:

Congress may wish to exercise its authority in a particular field, but because the field is sufficiently large, and the Members of Congress themselves not necessarily expert in the area in which they choose to legislate, the most that may be asked under the separation-of-powers doctrine is that Congress lay down the general policy and standards that animate the law, leaving the agency to refine those standards, "fill in the blanks," or apply the standards to particular cases.

82. Id. at 685; see also id. at 672. Arguably, Congress made this choice by qualifying the initial health-based requirement in § 6(b)(5) with the words "to the extent feasible." Under this reading, where health-based standards can be set based on thresholds of harm, and where those standards are feasible to meet, OSHA's task is relatively clear. Where thresholds cannot be ascertained, however, or where health-based standards cannot be met on grounds of feasibility, the resulting standards must be set entirely on the basis of feasibility. Read as such, Congress did make the basic policy choice of rejecting an absolute health-based requirement irrespective of feasibility. Justice Rehnquist, however, identified two problems with this reading of the statute. First, Congress did not define the phrase "to the extent feasible" itself as being limited to technological or economic feasibility or any other qualifying principle. Id. at 682 & n.5. Second, based on his review of the relevant legislative history, he concluded that "the feasibility requirement, as employed in § 6(b)(5), is a legislative mirage, appearing to some Members but not to others, and assuming any form desired by the beholder." Id. at 681. It is not my intent here to revisit whether Justice Rehnquist's reading of the legislative history, as opposed to the alternative suggested by Justice Marshall, see id. at 680, was more correct.

83. Id. at 685-86.

84. Id. at 675.

85. 938 F.2d 1310 (D.C. Cir. 1991) (Lockout/Tagout I).

86. International Union, United Auto., Aerospace & Agric. Implement Workers of Am. v. Occupational Safety & Health Admin., 37 F.3d 665 (D.C. Cir. 1994) (Lockout/Tagout III). In an intervening opinion, the court declined to vacate the regulation because of agency delay in responding to the court's initial remand. International Union, United Auto., Aerospace & Agric. Implement Workers of Am. v. Occupational Safety & Health Admin., 976 F.2d 749 (D.C. Cir. 1993) (Lockout/Tagout II).

87. 938 F.2d at 1316-17.

88. 175 F.3d at 1037-38.

89. 938 F.2d at 1312-16.

90. 448 U.S. at 639.

91. 938 F.2d at 1317.

92. Id.

93. Id. at 1321.

94. Id.

95. 37 F.3d at 669.

96. Id. ("as construed by OSHA, the Act guides its choice of safety standards enough to satisfy the demands of the nondelegation doctrine.")

97. 69 F.3d 878 (8th Cir. 1995), vacated & remanded on other grounds, 519 U.S. 919 (1996).

98. 25 U.S.C. § 465.

99. 69 F.3d at 882.

100. Id. at 884.

101. Id.

102. Chase v. McMasters, 573 F.2d 1011, 1015-16 (8th Cir. 1978), cert. denied, 439 U.S. 965 (1978).

103. See 69 F.3d at 884 (indicating that delegations normally are considered in light of and narrowing agency interpretation, citing the Lockout/Tagout decisions).

104. 5 U.S.C. § 701(a)(2), available in ELR STAT. ADMIN. PROC.

105. Citizens to Preserve Overton Park v. Volpe, 401 U.S. 402, 410, 1 ELR 20110, 20112 (1971).

106. American Power & Light Co. v. Securities & Exchange Comm'n, 329 U.S. 90 (1946). See also Skinner v. Mid-America Pipeline Co., 490 U.S. 212, 219 (1989); see Touby v. United States, 500 U.S. 160, 170 (1991).

107. At least in cases in which administrative standards are enforced criminally, Justice Thurgood Marshall believed that judicial review is a "constitutional necessity." Touby, 500 U.S. at 170 (Marshall, J., concurring). Similarly, Justice Scalia dissented from the holding in Mistretta v. United States (upholding delegation of authority to the U.S. Sentencing Commission), because he believed that Congress delegated legislative authority to an entity that was not subject to the usual structural controls on Executive Branch agencies, including accountability to the President and judicial review. 488 U.S. 361, 416-27 (1989).

108. See South Dakota, 69 F.3d at 883 (citing the "committed to agency discretion" language as evidence of the "unlimited power conferred by the statute's literal language.")

109. An additional indication of Justice Scalia's philosophy regarding the nondelegation issue is found in his dissent in Mistretta, discussed supra note 107. In that case, he wrote: "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?" 488 U.S. at 416. However, he would have found an impermissible delegation of legislative authority because the Sentencing Commission was not subject to the same structural controls, including accountability to the President and judicial review, as other Executive Branch agencies. Id. at 416-27. EPA, of course, is fully subject to those structural controls.

110. The Court refers to this procedure as "GVR," for "grant, vacate and remand." 519 U.S. at 919.

111. Id.

112. Id. ("Today's decision encourages the Government to do what it did here: to 'go for broke' in the Courts of Appeals, rather than get the law right the first time.").

113. 175 F.3d at 1034.

114. Chevron, U.S.A., Inc. v. Natural Resources Defense Council, 467 U.S. 837, 14 ELR 20507 (1984). Of course, the Chevron doctrine had roots in earlier decisions. E.g., Train v. Natural Resources Defense Council, 421 U.S. 60, 5 ELR 20264 (1975); Udall v. Tallman, 380 U.S. 1 (1965); Unemployment Compensation Comm'n v. Aragon, 329 U.S. 143 (1946).

115. 467 U.S. 837, 14 ELR 20507 (1984).

116. 467 U.S. at 842-43, 14 ELR at 20508 ("If the intent of Congress is clear, that is the end of the matter; for the court, as well as the agency, must give effect to the unambiguously expressed intent of Congress.").

117. Id. at 843, 14 ELR at 20509.

118. 195 F.3d at 8, 30 ELR at 20120.

119. See 467 U.S. at 843 n.11, 14 ELR at 20509 n.11 ("The court need not conclude that the agency construction was the only one it permissibly could have adopted to uphold the construction, or even the reading the court would have reached if the question initially had arisen in a judicial proceeding.") (emphasis added).

120. See id. at 843-44, 14 ELR at 20508-09.

121. See 175 F.3d at 1034, 29 ELR at 21072.

122. 42 U.S.C. § 7408, ELR STAT. CAA § 108.

123. Id. § 7408(a)(1), ELR STAT. CAA § 108(a)(1) (emphasis added).

124. Id. § 7408(a)(2), ELR STAT. CAA § 108(a)(2) (emphasis added).

125. E.g., Lead Indus. Ass'n v. EPA, 647 F.2d 1130, 1148-55, 10 ELR 20643, 20651-53 (D.C. Cir. 1980) (finding, for example, congressional instructions that prohibit EPA from considering the economic or technological feasibility of attaining NAAQS).

126. E.g., Touby v. United States, 500 U.S. 160, 163-65 (1991) (upholding delegation of authority to the Attorney General to determine which controlled substances constitute an "imminent hazard to the public safety.").

127. See Motor Vehicles Mfrs. Ass'n v. State Farm Mutual Auto. Insur. Co., 463 U.S. 29 (1983) (requiring agencies to "examine the relevant data and articulate a satisfactory explanation for the action, including a 'rational connection between the facts found and the choice made'") (citing Burlington Truck Lines v. United States, 371 U.S. 156, 168 (1962)). Whether American Trucking is such a case is beyond the scope of this Article, and requires a careful evaluation of a lengthy and complex administrative record.

128. Of course, to satisfy Article III justiciability requirements any such determination must be made in the context of a live "case or controversy" in which an adversely affected or aggrieved party challenges an actual agency application of the statute. This does not mean, however, that the threshold determination on the nondelegation issue depends on how well the agency explained its decision, as opposed to whether Congress incorporated adequate guiding principles in the statute itself.

129. 5 U.S.C. § 706(2)(A), available in ELR STAT. ADMIN. PROC.

130. Citizens to Preserve Overton Park v. Volpe, 401 U.S. 402, 417, 1 ELR 20110, 20113 (1971).

131. Id. at 420, 1 ELR at 20114.

132. See, e.g., Alon Rosenthal et al., Legislating Acceptable Cancer Risk From Exposure to Toxic Chemicals, 19 ECOLOGY L.Q. 269 (1992) (arguing that "legislating bright lines would do little to constrain agency discretion in risk management, since agencies would retain enormous discretion in the risk assessment process.").

133. Cf. J.W. Hampton v. United States, 276 U.S. 394, 406-07 (1928).