EPA v. American Trucking Association

Brief to the Supreme Court of Amicus Curiae Mercatus Center in support of respondent

Interest of the Amicus Curiae

The Mercatus Center at George Mason University is a non-profit research and educational institution, as defined by the Code of the Internal Revenue Service, 26 U.S.C. § 501(c)(3).[1] Its Regulatory Studies Program (RSP) is dedicated to advancing knowledge of administrative regulations and their effect on society. Through its Public Interest Comment Project, RSP submits independent analyses of proposed rules in agency rulemaking proceedings. It filed two such analyses with EPA on the proposed National Ambient Air Quality Standards for ozone and particulate matter during the comment period. Those comments identified the absence of any principled standards in EPA’s selection of the levels of permissible ozone and particulate matter.

Introduction and Summary of Argument

The principal issue in this case is whether the Environmental Protection Agency’s (EPA) interpretation of Section 109 of the Clean Air Act (CAA), 42 U.S.C. § 7409, is consistent with the constitutional doctrine that congressional delegations of lawmaking power must state an “intelligible principle” confining agency discretion within cognizable grounds.[2] The CAA was interpreted by both EPA and the court below, pursuant to Lead Industries Ass’n, Inc. v. EPA, 647 F.2d 1130 (D.C. Cir.), cert. denied, 449 U.S. 1042 (1980)(Lead Industries), as prohibiting consideration of “any factor other than ‘health effects relating to pollutants in the air’” in setting National Ambient Air Quality Standards (NAAQS) for ozone or particulate matter (PM). Pet. Cert. App. at 15a.

As a consequence, EPA’s rules setting permissible ozone and particulate matter levels did not openly examine cost, risk or other adverse effects of the standards despite a clear correlation between such implementation “costs” and overall health effects on the public. See generally Mercatus Amicus Br. (99-1426) at 11-23; General Electric Company Amicus Br. (99-1426) at 4-18. Nor did the ozone and PM rules identify a specific standard or measurable factor under the CAA as the basis for the selected NAAQS levels. Instead, EPA asserted that Congress delegated to it unlimited “discretion to make the ‘policy judgment’” of where the standard should be set. Pet. Cert. App. at 12a; see 62 Fed. Reg. 38,856, 38,869 (July 18, 1997); 62 Fed. Reg. 38,652, 38,691 (July 18, 1997). Under this framework, however, there is no principle or “determinate criterion” that EPA must satisfy in demonstrating that the levels it selected were authorized. Thus, the court of appeals found that EPA’s interpretation of CAA §109, if not corrected, would raise serious questions under the nondelegation doctrine.

EPA argues that the decision of the court below, which states that EPA should interpret the CAA so as to avoid violation of the nondelegation doctrine, is “novel,” “unprecedented,” “contrary to the purpose of the delegation doctrine” and without any “basis in this Court’s precedents.” Pet. Br. at 18, 26 & 28; see also Pet. Cert. Br. at 9 (court of appeals’ decision a “radical departure” from 65 years of consistent nonapplication of the nondelegation doctrine). In fact, however, it is EPA that has radically misread both this Court’s application of the nondelegation principle and the lower court’s adherence to clear precedent. All that the lower court held is that EPA’s interpretations of the CAA cannot disregard the nondelegation doctrine in reading § 109.

EPA acknowledges, as it must, that the nondelegation doctrine continues to be a viable principle underlying basic constitutional jurisprudence governing congressional grants of authority to administrative agencies. It cannot deny that both this Court and lower courts have adopted narrow readings of agency organic statutes where necessary to avoid constitutional invalidity under the nondelegation doctrine. Constitutional principles are frequently preserved by indirect means, see, e.g., Kent v. Dulles, 357 U.S. 116 (1958), but this less confrontational approach does not alter the importance or effect of the constitutional requirement.

The limited application of the nondelegation doctrine to read statutes narrowly is a reflection of the Court’s prudent use of the rule.[3] However, this restrained use does not contradict the doctrine’s importance as a foundational principle governing agency authority or its continuing validity.

Thus, despite EPA’s hyperbole, the only distinctive aspect of the ruling below is not that the court of appeals construed the agency’s reading of the CAA as raising “serious constitutional issues,” but rather that the court did not interpret the CAA for itself. The lower court recognized that, as interpreted by EPA, the CAA did not spell out the requisite standards by which EPA was to set appropriate NAAQS levels. Thus, it remanded the matter to EPA for it to decide in the first instance whether another permissible interpretation was possible and reasonable. Pet. Cert. App. at 14a, 57a-58a. That deferential approach is commanded by Chevron where, as here, the statute is “silent or ambiguous” on the “precise question at issue,” and it allows “the agency an opportunity to extract a determinate standard on its own.” Pet. Cert. App. at 14a.

  1. The statements in this brief do not represent an official position of George Mason University. The parties’ written consents to the filing of this brief have been filed with the Clerk of Court. Pursuant to Rule 37.6, amicus curiae states that no counsel for a party authored this brief in whole or in part, and no persons other than the amicus curiae, its members, or its counsel, have made a monetary contribution to the preparation or submission of this brief. Counsel acknowledge the contributions of Wendy L. Gramm, Director, and Susan E. Dudley, Senior Research Fellow, at the Mercatus Center, to the writing of this brief.

  2. We do not address either the “ripeness” or the “subpart 2" issues raised by petitioner.

  3. This Court has applied the “strong form” of the nondelegation doctrine to overturn legislation on only three occasions: Panama Refining Co. v. Ryan, 293 U.S. 388 (1935) (Panama Refining); A.L.A. Schechter Poultry Corp. v. United States, 295 U.S. 495 (1935) (Schechter Poultry); Carter v. Carter Coal Co., 298 U.S. 238, 310-12 (1936).


Additional details

Download full Amicus Brief (PDF) here.