D.C. Circuit Revives Nondelegation Doctrine ... or Does It? American Trucking Associations, Inc. V. EPA
Dimino, Michael Richard, Harvard Journal of Law & Public Policy
D.C. CIRCUIT REVIVES NONDELEGATION DOCTRINE ... OR DOES IT?: American Trucking Associations, Inc. v. EPA, 175 F.3d 1027 (D.C. Cir. 1999), modified, 195 F.3d 4 (D.C. Cir. 1999)
Article I, Section 1 of the Constitution charges Congress with the ability and the duty to make the law.(1) Courts have always understood, however, that Congress has the capacity to delegate some legislative power to other institutional actors,(2) typically those in the executive branch.(3) Such delegations are justified by the "practical understanding that in our increasingly complex society, Congress simply cannot do its job absent an ability to delegate power under broad general directives."(4) This does not mean that Congress enjoys unlimited authority to delegate. Under the judicially crafted "nondelegation doctrine," Congress delegates too much lawmaking power if it fails to provide an "intelligible principle to which the person or body [receiving the delegated power] is directed to conform."(5)
Since the New Deal, the United States Supreme Court has found an "intelligible principle" in exceptionally broad delegations of power from Congress.(6) However, the Supreme Court has never approved a delegation as broad as the one in the Clean Air Act (the "Act")(7)--the authority to promulgate any standard for air quality that the Environmental Protection Agency (the "EPA" or "Agency") deems "requisite to protect the public health."(8) Last May, in American Trucking Associations, Inc. v. EPA,(9) a panel of the Court of Appeals for the D.C. Circuit held that two sections of the Clean Air Act, as construed by the EPA, violated the nondelegation doctrine. Nevertheless, the panel remanded to the EPA so that the EPA could re-interpret the Act to pass constitutional muster.(10) Although American Trucking arguably allocates decisions regarding the scope of agency authority to a politically-accountable actor--an agency--rather than a court, the D.C. Circuit fails to note that it matters which politically-accountable actors make those decisions. By allowing the EPA to prescribe the limits of its own authority under the Act, the court of appeals ignored the core function of the nondelegation doctrine, which is to ensure that Congress makes policy choices. Indeed, the doctrine as applied by the court of appeals provides no limit on Congress's power to delegate authority.
Properly construed, the nondelegation doctrine requires that the Clean Air Act be struck down because the text of the Act provides no limit on the scope of the EPA's authority. Indeed, the EPA can use any conceivable amount of vigor in protecting the public health--including prohibiting all industrial activity--and still be within the terms of the Act. While broad delegations in the past were approved with the knowledge that agencies would be guided by legislative history or practices under the common law, the Clean Air Act gives the EPA neither explicit nor implicit standards. As a result, the Act departs from the constitutionally-mandated system of congressional lawmaking more than does even the most permissive Supreme Court precedent. Therefore, the Supreme Court should return the Act to Congress to force Congress, rather than the EPA, to make the hard choices between public health and industrial interests.
II. FACTS AND PROCEDURAL HISTORY
Congress passed the Clean Air Act "to protect and enhance the quality of the Nation's air resources so as to promote the public health and welfare and the productive capacity of its population."(11) Rather than specify the balance that was to be struck between public health and productivity, Congress delegated broad authority to the EPA to determine which levels of air pollutants would be lawful.(12) Indeed, the Act authorizes the EPA Administrator to promulgate any standard for air quality that the EPA deems "requisite to protect the public health" within an "adequate margin of safety. …