Congress Opens the Courthouse Doors: Statutory Changes to Judicial Review Under the Clean Air Act:

Intervention by the federal courts in regulatory policymaking has increased markedly, in both quantity and level of intrusiveness, over the last 40 years. Scholarly commentators have concluded that this level of intervention is not appropriate. This suggests a question: Why are the courts so involved in regulatory policymaking? This article answers that question by examining congressional motivation to increase the rights of interested parties to take their policy battles into court. By analyzing three sets of amendment to the Clean Air Act, I show that members of Congress strategically manipulate statutory rules governing the role of courts in regulatory policymaking to help their political supporters and to advance their own policy goals. Thus, a primary explanation of the increased role of the judiciary in regulatory policymaking is that this increase has served the goals of members of Congress. Judicial interference in regulatory policymaking has expanded enormously over the last 40 years, and federal judges have been criticized by political scientists, academic lawyers, and politicians for overstepping their institutional roles (clayton 1995). Scholarly critics have condemned the courts for frustrating agencies' attempts to make sound policy (Horowitz 1977; Mashaw and Harfst 1990; and Melnick 1983), and for undermining democratic control of policy (Rabkin 1989). An influential analysis of the courts' growing role in policymaking (Stewart 1975) characterized and criticized the expansion as the evolution of courts into substitute or supplementary forums for the assertion of political interests instead of legal rights. All these critics lay the blame for growth of judicial policymaking primarily at the feet of judges who have moved beyond their legitimate roles.1 However, this explanation overlooks the role that Congress has played in this process. The thesis of this article is that Congress has pushed the transformation of administrative law by giving more people more rights to take their policy disputes into court, and has done so for political reasons. Congress has the authority to specify who can challenge an agency in court, which court has jurisdiction over the case, how much time a litigant has in which to file a lawsuit, what types of evidence are admissible, and other parameters of judicial action.2 Through these parameters of judicial review, Congress can set the level and character of the judicial role in national policymaking.3 The right to go to court is a political resource, and the setting of these parameters of judicial review is a political process. This paper examines a cornerstone of environmental policy, the Clean Air Act, to illustrate congressional manipulation of judicial review provisions. Environmental policy is well-suited to this task for several reasons. First, it is an area in which extensive judicial intrusion into policymaking has been especially well noted (Melnick 1983). second, the two opposing coalitions on environmental policy are relatively clear-cut and cohesive. The objects of environmental regulation (those businesses and industries whose activities are limited by regulatory statutes), allied with anti-regulatory politicians, seek to reduce the impact of environmental regulation on the economy. The intended beneficiaries of regulation (the general public and, more specifically, environmental interest groups) allied with pro-regulatory politicians, support policies that will reduce pollution and clean up the environment. These two categories, objects and beneficiaries of regulation, overlap significantly with the constituent groups of the Republican and Democratic parties (Shipan and Lowry 2001). This study makes several important theoretical points. First, members of Congress lake an interest in these parameters of judicial review. In each of the three sets of amendments to the Clean Air Act, judicial review provisions were controversial and members of Congress focused attention on even the details of judicial review. …