Supreme Decisions on Clean Air

From the October/November issue of CEI UpDate

The most important case in the 30 year history of the Clean Air Act was heard by the US Supreme Court on November 7th. The decision in American Trucking Associations v. EPA, expected next Spring, could have profound implications, not only for the Environmental Protection Agency, but for the future direction of the federal regulatory state.

Back in 1997, the EPA enacted two controversial new regulations for ozone and particulate matter (smog and soot), substantially tightening the already-strict existing standards. These costly rules, likely the most expensive ever under the Clean Air Act, were challenged in federal court by a large coalition of regulated parties. In May 1999, the US Court of Appeals handed down a blockbuster verdict, invalidating both rules.

Among other rationales, the court held that, in choosing to strengthen existing standards without any intelligible principle to guide it, the agency had engaged in an unconstitutional delegation of legislative power. Under the Constitution, only Congress can legislate, and this responsibility cannot be passed along to executive branch agencies. Here, the court found EPA’s regulations so sweeping and unbounded so as to resemble legislation, and thus it invoked the so-called non-delegation doctrine to strike them down. According to constitutional scholar Laurence Tribe, “the lack of clear congressional standards limiting EPA, coupled with the agency’s unfettered discretion to establish its own guideposts, ensures that there is no adequate check on EPA’s decisionmaking.”

The EPA appealed to the Supreme Court, which agreed to hear the case. And, to make matters even more interesting, the Court also chose to separately review an important related matter, at the request of industry groups, regarding the question of whether EPA is forbidden from considering costs in its standards-setting process. The lower court felt bound by an earlier case precluding cost consideration, but the Supreme Court will now decide whether to overturn that precedent.

The stakes are enormous. If EPA prevails, the agency will not be restrained from periodically tightening existing Clean Air Act standards as it sees fit, no matter how high the costs or how vague the benefits. If the agency loses, then it will have to justify such actions by setting out specific goals and demonstrating that any new rules meet those goals.

The fate of future regulations under other statutes and agencies will also be affected by this decision. Indeed, in his 1993 book, Breaking the Vicious Circle, Justice Stephen Breyer wrote of the “tunnel vision” that overtakes many agencies in their “single-minded pursuit if a single goal too far, to the point where it brings about more harm than good.” A reinvigorated non-delegation doctrine may finally provide some light at the end of the tunnel.