The Supreme Court Upholds EPA Standard- Setting Under the Clean Air Act: Whitman v. American Trucking Ass'ns
Released: 2001-03-28T00:00:00

RS20860 -- The Supreme Court Upholds EPA Standard- Setting Under the Clean Air Act: Whitman v. AmericanTrucking Ass'ns

March 28, 2001

Background

NAAQSs lie at the very heart of the Clean Air Act. These standards prescribe maximum pollutant concentrations for ground-level, outdoor air, and have beenpromulgated by EPA for six pollutants, (2) includingozone and particulates. The NAAQSs determine the stringency of emission limits that each state must imposeon individual stationary sources of the six pollutants, to achieve the NAAQSs within its borders. NAAQSs comein two forms: "primary NAAQSs" protect thepublic health, while "secondary NAAQSs" protect the public "welfare" (non-public health effects). (3) Once a NAAQS has been promulgated, EPA mustreview it(and the "criteria documents" on which it is based) every 5 years, and make such revisions "as may beappropriate." (4)

In 1997, EPA revised the NAAQSs for ozone and particulate matter, making them stricter. Given the perceived impact of these more stringent standards on theeconomy, it was unsurprising that numerous legal challenges were brought - with two members of Congress (Rep.Bliley and Sen. Hatch) filing as amici on theside of the challengers. Pursuant to CAA requirement, the suit was filed in the U.S. Court of Appeals for the Districtof Columbia Circuit.

In May, 1999, the D.C. Circuit ruled 2-1 that various deficiencies in EPA's promulgation of the two NAAQSs required that they be sent back to EPA for furtherconsideration. (5) Among other things, the two-judgemajority held that EPA's reading of the CAA section governing the setting of primary NAAQSs gave theagency too much discretion, and thus violated the constitutional "nondelegation doctrine." It also rejected industry'sposition that EPA, in arriving at primaryNAAQSs, may consider the costs of implementation. Finally, it ruled that EPA could not enforce its revised primaryNAAQS for ozone, owing to its being aneight-hour standard, rather than the one-hour standard envisioned by CAA nonattainment-area provisions added tothe Act in 1990 (see further discussion on page4). Five months later, the three-judge panel made minor modifications in its opinion, but the full court refused togrant rehearing en banc (all the judges of thecourt sitting). (6) In May, 2000, the Supreme Courttook the case. (7)

What the Supreme Court Said

The Supreme Court in American Trucking gave EPA a unanimous victory on the two major issues in the case: consideration of costs, and nondelegation doctrine. Justice Scalia authored the opinion of the Court, with various justices writing separate concurrences to notedifferences as to rationale, but not as to holding.

Consideration of costs. The Court affirmed the D.C. Circuit decision (which, in turn, had endorsed existing case law of the circuit) in holding that whenpromulgating primary NAAQSs, or revised primary NAAQSs, EPA may not consider the costs ofimplementing the new standard. Health impacts, and healthimpacts alone, are to be the touchstone. The governing standard in the statute, the Court said, made this clear:section 109(b)(1) instructs EPA to set primaryNAAQSs "the attainment and maintenance of which ... are requisite to protect the public health" with an "adequatemargin of safety." (8)

Industry's arguments that considerations other than the health impacts of pollutants were cognizable could not overcome the directness of the above statutory text. For example, industry contended that a very stringent NAAQS might close down whole industries, therebyimpoverishing the workers dependent on that industryand, in turn, reducing their health. A health-based standard such as the primary NAAQS should include theseindirect impacts, industry asserted. The Court,however, pointed to numerous other CAA sections where Congress had explicitly allowed consideration ofeconomic factors, concluding that had it intended toallow such factors under section 109(b)(1), it would have been more forthright - particularly given the centrality ofthe NAAQS concept to the CAA's regulatoryscheme. Looking for such a forthright "textual commitment" of authority for EPA to consider costs, the Courtfound none. Its conclusion: section 109(b)(1)"unambiguously bars cost considerations from the NAAQS-setting process."

Nondelegation doctrine. The most controversial portion of the D.C. Circuit's majority opinion was its embrace of a long-moribund constitutional principle knownas the "nondelegation doctrine." This separation-of-powers doctrine derives from Article I of the Constitution,which vests "[a]ll legislative Powers" in Congress. Not surprisingly, the Supreme Court reads this vesting provision loosely, recognizing that Congress routinelydelegates quasi-legislative powers to non-Article Ibodies. In particular, Congress frequently commits to the specialized expertise of executive-branch agencies thetask of rulemaking in technical areas -- such asair pollution control. The nondelegation doctrine says that such delegations pass constitutional muster only ifCongress gives the agency an intelligible principle to guide its exercise of that authority.

The majority opinion below found that EPA had construed CAA section 109 so loosely as to render it an unconstitutional delegation. The court agreed with the factors used by the agency to assess the public health threat posed by air pollutants. But, it said, EPAhad articulated no intelligible principle for translating thefactors into a particular NAAQS, nor is one apparent from the statute. Given that both ozone and particulates arenon-threshold pollutants (adverse health effectsoccur at any concentration above zero), some public health threat has to be tolerated if EPA is to avoidshutting down entire industries. The agency, in the court'sview, had articulated no standard for determining how much .

In invoking the nondelegation doctrine, the D.C. Circuit drew considerable attention. It was the first time in 65 years that the nondelegation doctrine had beensuccessfully used, and raised serious implications for how Congress delegates standard-setting authority to agenciesgenerally. Commentators pointed to otherfederal statutes - such as the Corps of Engineers wetlands permitting program under the Clean Water Act, and therulemaking authority conferred by theOccupational Safety and Health Act - as vulnerable to nondelegation-doctrine challenge, should the D.C. Circuitbe affirmed on appeal.

The Supreme Court, however, reversed. The scope of discretion allowed by section 109(b)(1), the Court said, is "well within the outer limits of our nondelegationprecedents." Under section 109(b)(1), primary NAAQSs are to set at levels "requisite" to protect public health -"requisite" being argued by the United States,and accepted by the Court, as meaning "sufficient, but not more than necessary." To be sure, acknowledged theCourt, more guidance must be furnished theagency when the agency action is to have broad scope - as here, where the revised NAAQSs affect the entire U.S.economy. But even for sweeping regulatoryschemes, the Court disclaimed any demand that statutes provide a "determinate criterion" for saying precisely howmuch of the regulated harm is too much. EPAmay therefore be allowed discretion to determine how much of a public health threat from ozone and particulates(recall, they are non-threshold pollutants) it willtolerate at non-zero levels. (9)

Issues involving implementation of the revised ozone NAAQS. EPA lost, again unanimously, on two issues arising from its policy for implementing the revisedozone NAAQS in non-attainment areas. First, the Court rejected EPA's argument that the policy did not constitutefinal agency action ripe for review.

The Court then proceeded to the second issue: which CAA provisions govern the ozone nonattainment-area implementation policy. This calls for somebackground. The CAA imposes restrictions on nonattainment areas over and above those that the Act imposesgenerally. These additional nonattainment-arearestrictions are found in Title I, Part D of the statute. Subpart 1 of Title D contains general nonattainmentregulations that apply to every pollutant for which aNAAQS exists. Subpart 2 of Part D addresses ozone in particular. The dispute before the Court was whetherSubpart 1 alone, or rather Subpart 2 or somecombination of Subparts 1 and 2, controls the implementation of the revised ozone NAAQS in nonattainment areas. EPA, in its implementation policy, took theformer, Subpart-1-only course. The problem it faced was that Subpart 2 contemplated a 1-hour ozone NAAQS,reflecting the ozone standard existing whenSubpart 2 was enacted in 1990. The revised ozone NAAQS, however, embodied an 8-hour standard. Thus, someSubpart 2 provisions - in particular, thenonattainment-area classification scheme that identified the requirements to be imposed depending on an area'sdegree of nonattainment - did not fit the newozone NAAQS.

The Court found that EPA could not ignore Subpart 2 entirely, as it had done. Whatever awkwardness of fit results from applying Subpart 2 to the new ozonestandard, it cannot, said the Court, justify "render[ing] Subpart 2's carefully designed restrictions on EPA discretionutterly nugatory once a new standard has beenpromulgated ...." One example of the discretion-limiting nature of Subpart 2: under Subpart 1, EPA may extendattainment dates for as long as 12 years; underSubpart 2, only 2 years (though Subpart 2's attainment deadlines stretch from 3 to 20 years depending on the severityof an area's ozone pollution). The Court leftit to EPA "to develop a reasonable interpretation of the [CAA's] nonattainment implementation provisions" for therevised ozone NAAQS.

Legal Commentary

As to the nondelegation issue in American Trucking , EPA had gone to the Supreme Court with the stronger arguments. It was not a foregone conclusion,however, that EPA would win unanimously, as it did, even though the Court had on many occasions sustainedfederal statutes containing standards as loose as, orlooser than, that in the CAA governing NAAQS setting. A few justices voting for at least some resuscitation of thenondelegation doctrine was widely deemed apossibility on the ground that the Court in other areas recently has revealed an interest in cabining congressionalpower and discretion - and not only when thefederal-state balance is implicated. Though it has been 66 years since the last successful nondelegation-doctrinechallenge, the Court has not hesitated to reverselongstanding patterns in its constitutional jurisprudence when doing so furthered the agenda of a contingent of thejustices. Very likely, the Court's refusal tobring back the nondelegation doctrine stemmed in part from the Court's view that "in our increasingly complexsociety, replete with ever changing and moretechnical problems, Congress simply cannot do its job absent an ability to delegate power under broad generaldirectives." (10) Moreover, the task of rewritingfederal statutes necessitated by a reinvigorated nondelegation doctrine might be one of daunting magnitude. Fromthe environmental area to antitrust to civilrights, federal laws abound that give agencies only the broadest of guidance.

Likewise, EPA had the better argument when it came to inclusion of costs in the setting of NAAQSs. As a critic of using legislative history to divine the meaningof statutes, Justice Scalia restricted his analysis for the Court to examination of the statutory text itself. But theconcurrence by Justice Breyer reveals a legislativehistory from the enactment of the 1970 CAA that sides unambiguously with EPA's keep-costs-out position.

For the foregoing issues then, the American Trucking decision largely restores the status quo ante. As before the filing of this case, a lax jurisprudence under thenondelegation doctrine and the impermissibility of considering costs in setting NAAQSs are once again regardedas relatively settled law. Some commentatorshave noted the Court's refusal in American Trucking to defer to EPA's interpretation of the CAA onozone standard implementation, and speculated that thelegacy of the decision may lie in its signalling a desire by the Court to lessen the degree of judicial deference toagency decisionmaking. But it is premature as yetto draw this conclusion.

Remaining Issues

The Court's decision in Whitman v. American Trucking is not the end of court proceedings in the case. Numerous issues remain before the D.C. Circuit, andEPA's next attempt at an implementation plan may also be subject to court challenge.

Developing an implementation plan that embodies a "reasonable interpretation"of the Act's nonattainment implementation provisions for the revised ozoneNAAQS, as the Court mandated, is not an easy task. EPA has said that an 8-hour standard of 0.09 ppm would have"generally represent[ed] the continuation ofthe [old] level of protection," (11) but the newstandard is, in fact, set at a more stringent level of 0.08 ppm. Thus, the statute's classification system contains a gapthat does not address areas with readings of 0.08 - 0.09 ppm.

A second problem relates to the setting of attainment dates. In the 1990 amendments, Congress was specific in setting dates of attainment that ranged from 3-20years from the date of enactment, depending on the severity of an area's ozone pollution. The Court read thisspecificity as denying EPA its previous broaddiscretion in setting attainment dates. But three of the Act's deadlines (for Marginal, Moderate, and Serious ozonenonattainment areas) have already passed. How EPA is to respond to this is unclear. The Court itself noted that the Act's method for calculating attainmentdates "seems to make no sense for areas that arefirst classified under a new standard after November 15, 1990." (12)

In these circumstances, it would seem likely that whatever approach EPA may take will be subject to challenge by parties opposed to the new standards, with thepotential for several additional years of litigation before the issues are resolved. Whether Congress should interveneto settle these matters is a possibility that fewhave discussed. While logical in many respects, such a legislative clarification would open a number of issuesregarding the level of the new standards, theimplementation measures to be required, and the nature of EPA's standard-setting authority that interested partiesmay not wish to have legislated.