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The Recent Controversy Over the Non Delegation Doctrine

Environmental Law & Property Rights Practice Group Newsletter - Volume 3, Issue 2, Summer 1999

On May 14, 1999, in American Trucking Association v. EPA2 the United States Court of Appeals for the District of Columbia Circuit applied the nondelegation doctrine to overturn and remand what was probably the Clinton Administration's most important environmental policy initiative -- its promulgation of new National Ambient Air Quality Standards ("NAAQS") for ozone and particulate matter, commonly known as smog and soot. Estimates of the costs of compliance with the revised NAAQS ranged into the hundreds of billions of dollars, but at the very least would have been in the neighborhood of $45 billion. Thus, EPA's proposed changes to the NAAQS constituted one of the most expensive regulatory mandates ever imposed.3

Reaction to the decision striking down these rules from Carol Browner, Administrator of the EPA, was swift and less-than restrained. In Browner's words, the decision was "one of the most bizarre and extreme decisions ever rendered in the annals of environmental jurisprudence."4 That is extraordinarily harsh criticism for a court that has the exclusive power to review any nationally applicable environmental regulations EPA issues to combat air pollution.5 It is hard to imagine an EPA Administrator being so strident if her term of office were not coming to a close and the court's cooperation was required to secure the continued validity of future EPA programs.

Putting aside the political wisdom of Browner's remarks, they reflect a profound misunderstanding or mischaracterization of the American Trucking decision. The D.C. Circuit's use of the nondelegation doctrine in that case is in line with that court's own precedent, as well as with Supreme Court case law. Indeed, one wrinkle in the way the court applied the doctrine that has come under fire from Browner and the environmental left was originally suggested by Kenneth Culp Davis, a towering figure in the liberal approach to administrative law and the principal author of the leading treatise on the subject.6

Moreover, perhaps the leading modern scholar of the administrative state, Cass Sunstein (hardly an arch conservative), acknowledges the serious policy concerns that the court was seeking to address in American Trucking. Thus, while Sunstein argues in a forthcoming law review article that it was inappropriate for the court in American Trucking to invoke the nondelegation doctrine, his academic criticism is quite restrained, and indeed he suggests an alternative framework that would have yielded the same result reached by the D.C. Circuit -- invalidating and remanding the NAAQS set by EPA.7 (Admittedly, however, Professor Sunstein's approach would likely allow EPA to easily justify its current rules simply by offering a different explanation for them. The problems actually identified in the D.C. Circuit's decision will not be as easy for EPA to resolve.)

The nondelegation doctrine is based on constitutional text. The very first sentence of the substantive provisions of the Constitution, Article I, § 1, provides that "[a]ll legislative Powers herein granted shall be vested in a Congress of the United States." As every modern lawyer knows, however, there is a fundamental disconnect between that plain statement and the fact that much of the day-to-day law under which individuals and businesses operate is made not by Congress, but by unelected bureaucrats in administrative agencies issuing regulations pursuant to delegations of authority from Congress. The theory behind these delegations, however, has always been that the agencies are simply filling in the details after Congress has enacted the basic standards.8 Thus, although there have been relatively few Supreme Court cases invoking the doctrine against Congress (or the Executive -- see below), there is a vital line between valid delegations and abdication by Congress of all real responsibility in making the laws. For instance, a completely standardless delegation to industry representatives to create codes of competition was held to be so broad as to violate the nondelegation doctrine.9

While Professor Sunstein is fond of pointing out that the nondelegation doctrine has had only one good year -- 1935 -- because that was the only year in which the Supreme Court has ever invalidated any statutes under the doctrine, it is simply not true that the doctrine has been entirely dormant ever since the 1937 "switch in time that saved nine."10 In the so-called Benzene Case,11 a plurality of Justices led by that latter-day fellow traveler of the Four Horsemen,12 Justice Stevens, construed the Occupational Safety and Health Act of 1970 to avoid nondelegation problems. Then-Justice Rehnquist, in a concurrence, would have gone farther and simply declared the statute unconstitutional, rather than attempting to save it. The simple point, however, is that given Benzene, it is just not true that the nondelegation doctrine is dead, or that it is the product of a fringe on the new judicial right.13

After Benzene, in a careful and scholarly opinion, Judge Williams of the D.C. Circuit, applied the nondelegation doctrine to the so-called Lockout/Tagout case, invalidating and remanding certain rules issued by the Occupational Safety & Health Administration ("OSHA").14 And it was in this opinion that Judge Williams first put into action Professor Davis' suggestion for how to implement the nondelegation doctrine. Instead of applying the strong version of the nondelegation doctrine (Schechter), or the semi-strong version of the doctrine (Benzene), Judge Williams asked OSHA itself to suggest standards to constrain its own discretion. That decision to apply a weak form of the doctrine is fully consistent with the deference afforded administrative agencies under Chevron, U.S.A., Inc v. NRDC,15 and represents an attempt by the judiciary to minimize any intrusive effects of the nondelegation doctrine. Indeed, Judge Williams couples this approach with what seems his general preference not to vacate rules that have been inadequately explained by agencies.16 By doing so, Judge Williams allows an agency operating in the context of a nondelegation problem to attempt to supply a limiting principle for the troubling statute without having to repromulgate the rules at issue.17

American Trucking is nothing but a case in the line of Lockout/Tagout and Benzene. The D.C. Circuit's decision is therefore not radical. If anything, the range of discretion claimed by EPA is even more disturbing than the more narrow bounds of discretion available to OSHA in both Lockout/Tagout and Benzene. Comparing American Trucking to Lockout/Tagout, Judge Williams wrote: "EPA's freedom of movement between the poles is equally unconstrained, but the poles are even farther apart — the maximum stringency would send industry not just to the brink of ruin but hurtling over it, while the minimum stringency may be close to doing nothing at all."18 In a tongue-in-cheek, but accurate footnote, Judge Williams also noted that the range of discretion EPA claimed was not only capable of deindustrializing the entire nation, but also of requiring radical reductions in the soot generated by nature herself!19 Power that enormous is more to be feared than the power of federal judges like those on the D.C. Circuit, who in this context, are largely limited to reacting to the political branches' affirmative use of government coercion by preventing agency action from going into effect. More importantly, wanting to place limits on such agency power is perfectly consistent with, and even necessary to, democracy.

Judge Tatel dissented from the nondelegation aspects of American Trucking (Judge Ginsburg joined Judge Williams to form the majority on this issue). Judge Tatel emphasized two points in opposition to the majority. First, Judge Tatel claimed that the majority threatened to strike down part of the Clean Air Act, which in his view was more definite a delegation than was present in various other statutes upheld by the Supreme Court against similar challenges. Second, Judge Tatel argued that it was unnecessary to invoke the nondelegation doctrine to reach the result settled on by the majority.20

Contrary to Judge Tatel's first point, the majority did not threaten to strike down a portion of the Clean Air Act. Rather, it held only that as interpreted by EPA, the portion of the Clean Air that delegated the authority on which the Agency was relying in setting the NAAQS would have been unconstitutional if the statute were interpreted to hand over as much power to EPA as the Agency was claiming. Having made that determination, the majority would have been well within its rights under Benzene to provide a limiting principle itself for the Clean Air Act provision in question (and may yet do so if EPA fails on remand to identify a limiting principle). Instead, in a highly deferential nod to EPA's Chevron power to interpret the Clean Air Act, the majority gave EPA the first opportunity to solve the nondelegation problem presented by the Agency's interpretation of the statute. It is hard to see how this decision is so radically intrusive of agency power. Thus, it is difficult to reach a conclusion other than that Judge Tatel (and Administrator Browner) are exaggerating in saying that this decision "ignores the last half-century of Supreme Court nondelegation jurisprudence."21 If anything, it is Judge Tatel who is ignoring precedent on point. His decision never so much as cites Benzene.

Judge Tatel's second point, that it was unnecessary to invoke the nondelegation doctrine, because the same result could have been based on Administrative Procedure Act "arbitrary and capricious" review alone,22 seems to create a special rule for constitutional difficulties stemming from that doctrine. In the context of reviewing Federal Communications Commission ("FCC") decisions, for instance, the D.C. Circuit routinely identifies First Amendment problems with FCC action and remands for that agency to fix those problems.23 What the American Trucking court did in terms of the nondelegation doctrine is no different. It is undoubtedly true that in both types of cases, where FCC action creates First Amendment difficulties and EPA action creates nondelegation doctrine difficulties, a court could often invalidate the agency action at issue on the grounds of arbitrariness and capriciousness and remand for further proceedings without mentioning constitutional problems. But there is no reason not to mention these constitutional difficulties, especially when they are intertwined with the arbitrariness of the agency action under review. Furthermore, agency action that might not be arbitrary if no constitutional concerns are present can become arbitrary in light of such concerns. If the D.C. Circuit does not impose a constitutional "gag rule" on itself when it invalidates and remands FCC action in light of First Amendment problems, there is no reason for it to operate under a special "gag rule" in the nondelegation context.

Finally, it should be noted that the EPA rules in question were invalidated on statutory grounds as well as in light of the nondelegation doctrine. An important point often ignored or underestimated in much of the media hype about American Trucking is that the panel's statutory rulings were unanimous.24 In this regard, it is worth highlighting how the court dealt with EPA's smog (ozone) standard, because it was particularly problematic. When present at ground level, ozone, the same substance that high up in the sky forms the "ozone layer" which blocks the sun's harmful ultraviolet radiation ("UV"), has been associated with various respiratory illnesses. Those harmful ground-level effects are EPA's mandate for regulating ozone. But what EPA refused to consider in its NAAQS rulemaking was the scientific evidence establishing that ozone at ground level has the same UV-blocking effects that it has in the stratospheric ozone layer. And it is not trivial to ignore these benefits because excess UV radiation has been strongly linked to skin cancer, cataracts, and immune-system dysfunction. Thus, ozone at ground level has both harmful and helpful effects on human health. The D.C. Circuit invalidated EPA's decision to consider only one half of the "equation" by focusing in its regulations on the harmful effects of ground-level ozone, while ignoring its positive effects.

The American Trucking decision is not radical. Rather, it represents a modest form of the nondelegation doctrine even less stringent than the one used by the Supreme Court relatively recently in the Benzene Case. Indeed, its use in this fashion was advocated by a liberal academic long ago, and had been similarly used by the D.C. Circuit before American Trucking was ever handed down. Finally, American Trucking is about more than just the nondelegation doctrine -- important statutory questions posed by the case were resolved by a diverse panel both in favor of and against EPA. What American Trucking is really about is saving the public from having to live under one of the most expensive regulatory mandates ever issued by an agency where the agency's choices were arbitrary and based on slipshod legal analysis.

Shortly after the decision was issued, EPA petitioned for en banc review of American Trucking. That petition is still pending. If a vital principle protecting our democracy is to be preserved, that en banc petition should be rejected, or if it is granted, should lead to a decision reaching the same result as the panel by acknowledging the nondelegation-doctrine concerns present in the case. Supreme Court review should prove unnecessary, but if it occurs, the High Court should strengthen and not weaken its approach in the Benzene Case.

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   1. * Mr. Clark is an associate at Kirkland & Ellis. He participated in briefing the American Trucking decision in proceedings before the United States Court of Appeals for the District of Columbia Circuit en banc. The views expressed here are solely Mr. Clark's and do not represent those of the American Trucking Association, any of the other parties to the American Trucking case, or any of Kirkland & Ellis's other clients.
   2. 175 F.3d 1027 (D.C. Cir. 1999).
   3. Court Asked to Rehear Soot and Smog Rule That Two Judges Ruled Unconstitutional, 27 The Energy Report, Issue 27 (July 5, 1999).
   4. Justice Appeals Air Standards Decision, Chemical Week (July 7, 1999).
   5. See Clean Air Act ("CAA") § 307(b)(1), 42 U.S.C. § 7607(b)(1).
   6. See 1 Kenneth C. Davis, Administrative Law Treatise 207-08 (2d ed. 1978) (suggesting that the nondelegation doctrine should be implemented not by courts striking down congressional enactments with overly broad delegations, or by courts narrowing otherwise overbroad statutes to avoid constitutional problems, but by "requir[ing] the administrators . . . as rapidly as feasible [to] supply the [missing] standards").
   7. Professor Sunstein has released a preliminary version of his law review article through the AEI-Brookings Joint Center for Regulatory Studies, entitled "Is the Clean Air Act Unconstitutional?" It may be found on the Internet at
http://www.aei.brookings.org/publications/working /working_99_07.pdf. It should be noted, however, that while Professor Sunstein's academic criticism of American Trucking is muted, his criticism in the popular press approaches Carol Browner's in tone. See Cass R. Sunstein, The Courts' Perilous Right Turn, New York Times at A25 (June 2, 1999). In that article , Sunstein used American Trucking as evidence to support his thesis that "some conservative judges are fighting democracy, not working with it." Given that later briefing filed on EPA's behalf by the Justice Department had a more measured tone, in line with Sunstein's draft law review article, it is likely that both Professor Sunstein and Administrator Browner are simply making their voices shrill in the popular press to attract the public's attention to a decision they disagree with on policy grounds. It is unfortunate that a prominent law professor and a high-ranking government official present such different faces to the general public than to a specialized legal audience.
   8. See United States v. Grimaud, 220 U.S. 506 (1911).
   9. See Schechter Poultry Corp. v. United States, 295 U.S. 495 (1935) (commonly called the "sick chicken" case because the challenge at issue was brought by a poultry dealer unhappy with the code created under this delegation of authority, which prevented him from selling chickens of below-average quality).
  10. The reference is to the famous switch by Justice Roberts that gave President Roosevelt his way in pushing forward with the New Deal, even after the defeat of his Supreme Court packing plan, ostensibly designed to ease the workload of Justices who were growing old. See West Coast Hotel v. Parrish, 300 U.S. 379 (1937) (where Justice Roberts first began to switch sides).
  11. Industrial Union Dep't, AFL-CIO v. American Petroleum Instit., 448 U.S. 607 (1980).
  12. In a comparison to the Book of Revelation 6:12, the four Justices who most strongly opposed the New Deal were called the "Four Horsemen" after the biblical four horsemen of the Apocalypse. The Justices in question were: Pierce Butler, James McReynolds, George Sutherland, and Willis Van Devanter. The comparison of Justice Stevens to these much-maligned Justices is intended to be sarcastic.
  13. It is true that the Supreme Court has upheld certain other delegations, such as the Federal Sentencing Guidelines, but those delegations were hardly as extreme as those in the sick chicken case or in Benzene. See Mistretta v. United States, 488 U.S. 361 (1989). Justice Scalia dissented from Mistretta, but not on nondelegation grounds.
  14. International Union, UAW v. OSHA, 938 F.2d 1310, 1317 (D.C. Cir.1991).
  15. 467 U.S. 837 (1984).
  16. See Allied-Signal, Inc. v. NRC, 988 F.2d 146 (D.C. Cir. 1993); but see Illinois Public Telecommunications Ass'n v. FCC, 123 F.3d 693, 694 (D.C. Cir. 1997) ("a reviewing court should normally strike the balance in favor of vacating the agency's action, unless special circumstances exist."), cert. denied sub nom. Virginia State Corp. Comm'n v. FCC, 118 S. Ct. 1361 (1998); see also Checkosky v. SEC, 23 F.3d 452 (D.C. Cir. 1992) (opinion of Randolph, J.) (arguing that courts reviewing agency action under the Administrative Procedure Act lack the authority to allow invalid agency regulations to continue in effect pending a remand).
  17. See International Union, UAW v. OSHA, No. 89-1559, 1991 WL 223770 (Sept. 16, 1991) (refusing to vacate suspect OSHA rules pending a remand to OSHA). The panel in American Trucking acted in similar fashion. Thus, the invalidated NAAQS are still on the books at EPA, and will spring back into life if the D.C. Circuit panel in American Trucking becomes satisfied that EPA has addressed the nondelegation problems at issue there, or if the panel's decision is ever vacated or reversed.
  18. American Trucking, 175 F.3d at 1037.
  19. See id. at 1038 n.4.
  20. See id. at 1057-62 (Tatel, J., dissenting).
  21. Id. at 1057.
  22. Id. at 1061.
  23. See, e.g., Sangre De Christo Communications, Inc. v. FCC, 139 F.3d 953, 957-58 (D.C. Cir. 1998); Becker v. FCC, 95 F.3d 75, 84 (D.C. Cir. 1996); cf. Lamprecht v. FCC, 958 F.2d 382 (D.C. Cir. 1992) (Thomas, J.) (vacating order that violated Equal Protection Clause).
  24. Given that Judge Tatel, a Clinton appointee, joined in these rulings, it should be hard for Carol Browner to claim that the decision was extreme, or for Professor Sunstein to claim that the decision is the product of activist conservative judges. Judging from what they have said already, however, this has not proven true.