Avoiding a Hobson's Choice: Why EPA's Tailoring Rule Is a Valid Act of Agency Discretion

To what degree may federal administrative agencies rely on the absurd results doctrine to depart from the clear command of their enabling statutes? The answer is that agencies may rely on the absurd results doctrine when the agencies’ statutory mandate is clear on a specific issue but following the literal language of the statute would undermine congressional intent and drain administrative resources to the point of preventing the agency from carrying out the very statutory requirements in question. In such cases, departing from the statutory language is permissible because doing so is necessary to protect the legislative intent of the statute. This thesis determines the scope of the absurd results doctrine by examining an internal clash between the provisions of a statute — specifically, the conflict between provisions of the Clean Air Act (CAA) that require the regulation of specific levels of pollutants and the general goals of the CAA as expressed elsewhere in the law. The statute’s internal clash is the result of the application of the CAA in a new and unanticipated context. Namely, the U.S. Supreme Court in Massachusetts v. EPA has required EPA to regulate greenhouse gases (GHGs) under the CAA. However, GHGs occur naturally at much higher levels than the pollutants that were the original target of the CAA. If GHGs were regulated at the same levels as other pollutants, not only would regulation be extended to individuals and small businesses that Congress clearly did not wish to regulate, but EPA would be overwhelmed by the enforcement effort and unable to carry out its duties under the statute. In response to this dilemma, EPA promulgated the Tailoring Rule, which narrows the scope of the permitting provisions of the CAA to GHG emissions by exempting small stationary sources of GHGs. This thesis argues that EPA and the courts may use the rule to deviate from the plain language of the CAA because following the plain language of the statute would lead to an absurd result.There is a problem, however, with relying on the absurd results doctrine to deviate from the clear language of a statute. Namely, the separation of powers doctrine of the Constitution requires Congress to make the law without judicial interference. Congress is politically accountable while the courts are not; therefore, the courts should restrain themselves from reading exceptions into statutes when the language of the law is clear. To do otherwise would be to impinge on the power to legislate, a power restricted to Congress. There are, however, situations when the doctrine of separation of powers does not prevent courts and agencies from departing from the plain language of a statute. Specifically, the language of a statute may be clear, but, when that language is applied to a new situation, it may produce absurd results that run counter to the congressional goals of the statute. In such situations, the courts should apply the absurd results doctrine of administrative law to the statutes in question and allow the courts and administrative agencies to deviate from the language of the statutes. Specifically, EPA should be able to use the Tailoring Rule to deviate from the strict numerical applicability thresholds of the CAA’s permitting provisions when regulating climate change because doing so is necessary to satisfy other, more general goals of the CAA, to preserve economic growth and avoid undue administrative burdens on EPA. These general goals reflect the intent of Congress and are reflected in the language of the statute. In addition, although the Chevron standard of review appears to present an obstacle to the application of the absurd results doctrine to the Tailoring Rule, the thesis shows how the courts can reconcile Chevron with the absurd results doctrine. Furthermore, although the theory of textualism appears to invalidate the use of the absurd results doctrine, this thesis demonstrates why textualists ought to accept the absurd results doctrine, both in general and as applied to the Tailoring Rule.