Presidential Authority over EPA Rulemaking under the Clean Air Act

Article excerpt

I. INTRODUCTION     A. The Clean Air Act, the Administrator, and the President    B. A History of the Regulation of Ozone    C. Different Views of What is an Independent Agency       1. The Legislative View       2. The Presidential View       3. The Judicial View          a. Humphrey's Executor and the Unitary Theory of the             Presidency          b. OMB Interference with EPA    D. The Special Case of the EPA    E. Conclusions 

I. INTRODUCTION

During the past forty years of federal administrative law, there has been an increase in presidential authority due to the expansion of the regulatory state. In the case of the Environmental Protection Agency (EPA), this has played itself out in an evolving tension between the EPA Administrator and the President, over the promulgation of the national ambient air quality standards (NAAQS).

Two recent conflicts illustrate this tension. In 2008, Administrator Stephen Johnson was criticized for changing EPA policy under pressure from the Bush White House, with respect to three items on the agency's regulatory agenda. Those items included the agency's review and revision of the ozone NAAQS, its review of California's petition for a waiver from federal preemption for its greenhouse gas regulations for new motor vehicles, and its abandonment of a proposed rule that would regulate tailpipe emissions following the decision of the United States Supreme Court in Massachusetts v. Environmental Protection Agency. (2) A similar conflict arose in September 2011, when President Obama requested that Administrator Lisa Jackson withdraw a final rule revising the ozone NAAQS, when she was about to promulgate the final rule. (3) In both cases, allegations were made that the President had unlawfully interfered with the EPA Administrator's statutory obligations under the Clean Air Act. (4)

Part I of this article reviews the structure of the Clean Air Act, with a focus on the different roles of the President and the EPA Administrator. (5) Part II considers the importance of ozone as a criteria pollutant subject to regulation under the Clean Air Act, and how it has become a driving force in the tension between Congress and the President over the promulgation of the NAAQS. It reviews the facts surrounding the decisions of Administrator Stephen Johnson and Administrator Lisa Jackson regarding the revision of the ozone NAAQS, in the face of pressure from the White House. Part III reviews how Congress, the President, and the Supreme Court have differing views regarding the relationship between the President and federal agencies. Part IV evaluates the special case of the EPA in the universe of federal agencies, arising out its unique creation in 1970 and its powerful role as protector of the environment. Part V concludes that contemporary presidential predominance over the EPA merely reflects a historical pattern of acquiescence by a Congress that has not vigorously resisted presidential influence. Because of this predominance, challenges to EPA action based on alleged interference by the President are unlikely to be successful, either legally or politically. However, presidential interference generally causes EPA rulemakings to become less about science and more about politics, making such decisions more vulnerable to challenge under applicable standards of review.

A. The Clean Air Act, the Administrator, and the President

While the Clean Air Act is considered the nation's first command-and-control environmental statute, it was not the first modern federal environmental statute. (6) That credit goes to the National Environmental Policy Act of 1969 (NEPA), effective the first day of the year 1970. (7) But the Clean Air Act was the first substantive environmental statute. Effective the last day of the year 1970, it created a comprehensive regulatory scheme for protecting public health and welfare from air emissions from industrial facilities (stationary sources) and cars and trucks (mobile sources). …