August 01, 1999
The D.C. Circuit's opinion in American Trucking Associations v. EPA (ATA)1 is both more and less significant than many commentators claim. On the one hand, the D.C. Circuit has raised profound questions about the conduct of environmental policymaking, at both the administrative and statutory level. The need to provide clear "intelligible principles" to guide rulemakings and account for riskrisk tradeoffs is likely to have profound and salutary effects on environmental, health, and safety regulation. On the other hand, the majority's resort to the nondelegation doctrine was by no means radical or unprecedented. The ATA case presented a stronger nondelegation claim than the Supreme Court faced in International Union Dep't, AFL-CIO v. American Petroleum Institute (the Benzene case),2 and the D.C. Circuit adopted a less intrusive remedy. Notwithstanding the ATA decision, environmental regulation will continue, and EPA will be on notice that it must make a greater effort articulating the basis for its decisions.
Most commentary to date has focused on the majority's reliance upon the nondelegation doctrine, and suggests that the court resurrected an old and discredited doctrine. This view misunderstands the recent case law and the majority's use of the nondelegation principles espoused in Benzene. Judge Williams' majority opinion on the delegation issue hardly threatens to emasculate the administrative state. Rather, it is an appropriate post-Chevron response to the problem of an openended, economywide delegation, such as that addressed by the Supreme Court twenty years ago in Benzene. As the Supreme Court then noted, "it is unreasonable to assume that Congress intended to give" an agency "the unprecedented power over American industry that would result" from the lack of a stopping point or constraining interpretation of the authorizing statute.3 When Congress delegates, it must provide agencies with an "intelligible principle" to guide their exercise of the delegated authority. When Congress fails to provide such a principle, the Court has three choices: 1) invalidate the statute; 2) interpret the statute so as to provide the missing principle; or 3) ask the agency to formulate the principle, much as courts expect agencies to fill other statutory gaps left by Congress under Chevron.4
Rather than being an unprecedented exercise of judicial activism, ATA is in many ways a replay of Benzene, with two key differences: 1) the delegation in ATA is, if anything, broader and encompasses far more, because a NAAQS determination has more far reaching impacts than a workplace exposure limit for selected industries; and 2) the D.C. Circuit only went so far as to remand the standard to the EPA. The ATA majority, in asking the agency for an "intelligible principle" to guide the exercise of its delegated authority, gives EPA another opportunity to develop a constraining interpretation, thereby salvaging both its authority and the NAAQS provisions of the CAA. This is the least intrusive remedy the court could have provided, and one that is the most consistent with the Supreme Court's administrative law rulings.
The best evidence that EPA had no intelligible stopping point for the setting of NAAQS is its treatment of the disbenefits of ozone reduction. All three judges agreed that, under the plain language of the statute, EPA must consider the negative health effects of reducing tropospheric ozone. Numerous studies, some of which EPA has relied upon in other contexts, suggest that ozone helps prevent skin cancer and cataracts by screening UV-B radiation.5 Thus, reducing urban ozone levels in an effort to prevent respiratory ailments could increase the risks from UVB exposure; if so, EPA's ozone standard could do "more harm than good."
Given the EPA's responsibility under the CAA to consider "all identifiable effects on public health or welfare" of varying levels of pollutants in the air,6 the agency was derelict in "explicitly disregard[ing]" these adverse effects.7 As the unanimous court explained "it seems bizarre that a statute intended to improve human health would, as EPA claimed at argument, lock the agency into looking at only one half of a substance's health effects in determining the maximum level for that substance."8 The substantive strand of APA-like review alone should preclude that outcome, as my partner, Gary Marchant, and I demonstrated in our law review article on the same subject.9
EPA must now contend with the riskrisk tradeoffs inherent in lowering the ozone NAAQS. The agency can no longer ignore the negative public health consequences that can result from its actions, however well-intentioned, in attempting to set a standard as low as 0.08 ppm for ozone. Moreover, any "intelligible principle" that the EPA formulates for future NAAQS decisions is likely to incorporate some metric for systematically measuring health impacts, whether it be "qualityadjusted life years" as suggested by the Court,10 or something else.
While the ATA decision is not earthshattering, it does raise important questions about the manner in which Congress and administrative agencies address environmental, health, and safety issues. It is not enough for Congress to enact broad delegations of power unless an agency is willing and able to fill the gap. As a result, agencies will have to be more cognizant of the net environmental and health impacts of their decisions. This can only be a good thing, as regulatory decisions will focus more on the most pressing environmental, health, and safety problems. If this leads to more centralized executive oversight, and OMB and others are prompted to give agency rules a harder look before promulgation, the end result will likely be more deferential, not more intrusive, judicial review much as occurred after Benzene. In any event, EPA and its sister agencies will continue to regulate, but under ATA they will be more accountable for their decisions.
1. No. 97-1440 (D.C. Cir. May 14, 1999).
2. 448 U.S. 607 (1980).
3. Benzene, 448 U.S. at 644-45.
4. Chevron v. NRDC, 467 U.S. 837 (1984).
5. This literature is summarized in Gary E. Marchant, Turning Two Blind Eyes: The EPA's Failure to Consider Costs and Health Disbenefits in Revising the Ozone Standard, 11 TULANE ENVTL. L. REV. 261, 272-76 (1998).
6. 42 U.S.C. 7408(a)(2).
7. ATA, slip op. at 38.
8. ATA, slip op. at 40.
9. Edward W. Warren & Gary E. Marchant, "More Good than Harm: A First Principle for Environmental Agencies and Reviewing Courts", 20 ECOL. L. Q. 379 (1993).
10. See ATA, slip op. at 16.
Edward W. Warren is a partner at Kirkland & Ellis in Washington, D.C. Mr. Warren was one of the attorneys representing petitioners in the American Trucking Associations case. He also represented the winning side before the Supreme Court in International Union Dep't, AFL-CIO v. American Petroleum Institute (the Benzene case). The views expressed herein are those of the author, and not necessarily those of his law firm or its clients. Copyright 1999, Edward W. Warren.