With a pro-regulation White House and a timid Republican Congress, the judicial branch currently stands as the only real roadblock to federal regulatory excesses. Thankfully, the US Court of Appeals for the DC Circuit came through in a big way last month. Its decision in American Trucking Associations v. EPA invalidates two of the most objectionable rules enacted by the Clinton Environmental Protection Agency, and could have broader implications for reining in the federal regulatory state.
EPA’s 1997 rules substantially tightening the already strict standards for ozone and particulate matter were arguably the worst ones ever in the 30 year history of the Clean Air Act. As discussed in regulatory comments filed by CEI with the agency (See, “The EPA’s Hazy Air Rules,” April 1997 UpDate), these rules would yield nearly non-existent public health benefits but impose very high costs. The irrationality of its ambitious agenda came as no surprise to the agency, since EPA’s Clean Air Scientific Advisory Committee (CASAC) doubted the scientific and public health justification for the rules, and the agency’s own economic analysis estimated full implementation costs nearing $47 billion annually.
In enacting these rules, the agency took to an illogical extreme its vague congressional mandate under the Clean Air Act to set standards that “by an adequate margin of safety, are requisite to protect the public health.” EPA clearly overstepped, but it was Congress that gave it the opportunity to do so.
Congress not only created the monster, but did nothing to stop it. Numerous congressional hearings exposed the scientific weaknesses in EPA’s rationale for the new rules. These hearings also provided an opportunity for groups representing the hundreds of thousands of businesses, local governments, and others burdened by the new rules to voice their concerns. Organizations as diverse as the National Conference of Black Mayors and the American Farm Bureau spoke out against the standards and the costs they would impose.
Nonetheless, although bills to repeal the measures were introduced, and probably had a majority in support, Republican leaders did not allow a vote for fear that they did not have a veto-proof majority. Many in Congress complained about environmental regulators run amok, but in the end they refused to do anything about them.
Time and again, Congress has shown that it will duck the tough policy choices. It did so when drafting the Clean Air Act’s open-ended goals, and it did so again in refusing to vote down these bad rules created as a result.
With no other recourse, nearly 40 aggrieved parties challenged the rules in court. The decision overturning them is one of the most important environmental law decisions in recent years. Most significantly, the court concluded that EPA construed the Clean Air Act’s provisions “so loosely as to render them unconstitutional delegations of power.” In other words, EPA’s interpretation of its authority under the Clean Air Act is so unbounded that it more resembles legislation than regulation. However, under the Constitution, legislation can only be enacted by Congress, not by unelected and largely unaccountable bureaucrats. In this case, the court was particularly disturbed that, in mindlessly tightening the existing standards, the agency did not articulate any “intelligible principle by which to identify a stopping point.”
The court instructed EPA to go back to the drawing board, and come up with an interpretation containing “determinate, binding standards for itself.”
These two overturned rules, and the Clean Air Act under which they were promulgated, are by no means unique in being vulnerable to a challenge under the so-called non-delegation doctrine. Quite the contrary, there are many other federal statutes that hand blank checks to regulators, and many regulators who have filled in those checks and cashed them.
Be it the ridiculously inclusive definition of “wetlands” subject to regulation under the Clean Water Act, or the so-called E-rate, a tax on phone service to fund school programs created by the Federal Communications Commission, a number of regulatory power grabs may come under judicial attack.
This case represents a welcome return to the separation of powers envisioned in the Constitution. If more widely applied, the non-delegation doctrine, by holding both Congress and executive branch agencies more accountable for their actions, would result in better government.
Ben Lieberman ([email protected]) is a policy analyst with the Competitive Enterprise Institute.