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At the heart of the American Trucking cases that will be argued Nov. 7 in the Supreme Court is whether Congress intended unelected officials at the Environmental Protection Agency to make extraordinarily important policy decisions in an ad hoc fashion. When the EPA revised the National Ambient Air Quality Standards for ozone and particulate matter in 1997, it claimed that it had entirely unconstrained authority to pick any standards it wanted. This was no small matter — the air quality standards are binding on all 50 states and are enforced by substantial penalties, including new construction bans and the loss of federal highway funding. Moreover, even the EPA admits that its ozone and particulate matter air quality standards, if upheld, would cost the nation tens of billions of dollars annually. And its own science advisors “concluded that there is no ‘bright line’ which distinguishes any of the proposed standards … as being significantly more protective of public health.” Against this backdrop, the D.C. Circuit had no trouble holding that if the EPA’s open-ended interpretation of the Clean Air Act were correct, it would unconstitutionally delegate legislative authority. Having lost in the U.S. Court of Appeals for the District of Columbia Circuit, the EPA now claims in the Supreme Court (in American Trucking Associations v. Browner and Browner v. American Trucking Associations) that the act does indeed provide limits on agency discretion. We agree. But the EPA has never identified what those limits might be, aside from offering what University of Chicago Law School Professor Cass Sunstein calls “minimally informative generalities.” These generalities say in varied ways that the EPA must closely scrutinize every aspect of what it calls the “health effects” of air pollution. The reason the EPA is so tongue-tied in defining the touchstone for air quality standards decision making is that the agency is unwilling to accept the air standards law as Congress passed it — to protect “public health.” In particular, the agency refuses to follow the “public health” profession’s long-standing insistence that the costs of community-wide public health interventions (along with their medical benefits) be considered in deciding which interventions to undertake. Article I, section 1 of the U.S. Constitution provides that “[a]ll legislative Powers herein granted shall be vested in a Congress of the United States.” As John Marshall explained long ago, “[i]t will not be contended that Congress can delegate … powers which are strictly and exclusively legislative.” In modern times, the Supreme Court has repeatedly reaffirmed this “nondelegation” doctrine by holding that while Congress may delegate policy-making authority to agencies, it must provide an “intelligible principle” to guide agency action. Although an intelligible principle may often be implied from the statutory context, an express congressional selection of a substantive principle is required (subject to certain exceptions) in cases of special importance. As Justice Stephen Breyer recognized in Clinton v. City of New York, 524 U.S. 417 (1998), congressional delegations must be especially precise where they concern “the entire economy.” DEINDUSTRIALIZING THE ECONOMY The American Trucking cases undoubtedly concern the “entire economy.” Ozone and particulate matter are emitted by combustion in all forms — from the internal combustion engine to power generating equipment to campfires. As the court of appeals recognized, a rule eliminating ozone and particulate matter would outlaw combustion altogether. And even at the emission levels permitted by the 1997 air quality standards, the EPA estimates that the annual costs of achieving these standards will be nearly $10 billion for ozone and $37 billion for particulate matter by 2010. Because the EPA’s revised ambient air standards govern virtually all energy use, and directly or indirectly affect virtually every business in the United States, these rules are the paradigmatic example of economy-wide regulation. That is critical because Supreme Court’s nondelegation precedent makes clear that delegations must be more precise when the economy as a whole is at stake. Only when agencies are filling in details or addressing minor matters may the delegations be less precise. Nonetheless, when it revised the ozone and particulate matter air-quality standards in 1997, the EPA interpreted Congress’ legislation to provide no “intelligible principle” whatever. The EPA instead claimed that it was free to impose air quality standards under an ad hoc approach that recognizes “no generalized paradigm,” that “may not be amenable to quantification in terms of what risk is ‘acceptable’ or any other metric,” and that is “largely judgmental in nature.” The EPA again claimed in the court of appeals that nothing in the statute “requires [the EPA administrator] to make any specific ‘findings’ or to structure her decisionmaking in any particular way.” Here, where the issue theoretically might spell the difference between the world’s richest economy and deindustrialization, the D.C. Circuit could not possibly overlook these assertions. As the EPA interprets it, the act lacks an “intelligible principle,” and the D.C. Circuit held just that. Now that the agency is backing away from its previous assertions of unbounded authority, it seems clear, perhaps even to the EPA, that its 1997 ambient air standards must be overturned. The focus of the American Trucking cases in the Supreme Court has thus shifted along with the EPA’s position. The debate now centers on what “intelligible principle” will govern these rule makings once they return to the agency, rather than on the constitutionality of Congress’ delegation. The key statutory text states that air quality standards should be set at levels “requisite to protect the public health.” Because (unlike similarly important statutory terms) Congress declined to define “public health” in the statute itself, that critical term must be read in light of its established ordinary language and technical meanings. Crucially, “public health” is an established discipline that synthesizes the medical and social sciences, with significant emphasis on economics. The EPA’s advocates claim to find it strange that Congress would have mixed medical and economic considerations in a single policy analysis. But that is precisely what “public health” practitioners do under the established canons of their profession. Congress, like these professionals, can hardly have failed to recognize this important relationship. At the time Congress enacted the relevant provisions of the Clean Air Act in 1970, public health organizations such as the U.S. Public Health Service and World Health Organization had only just begun to recognize air pollution as an important “public health” issue. But those organizations had long recognized the strong relationship between economic development and public health benefits. To bring the relationship between economics and public health into focus, consider that, according to the President’s Council of Economic Advisors’ “high end” estimates, the EPA’s ozone air standards alone (over the 12-year implementation span the EPA plans) would cost approximately $720 billion — about the size of Canada’s annual gross national product. Given this staggering sum, shouldn’t the EPA ponder the size of its planned expenditure before implementing standards to abate an air pollution problem its own science advisers deem not significant? And even more fundamentally, shouldn’t the EPA consider the impact on housing, heating, cooling, drugs, medical care, food, and other public health concerns that would result from diverting so many resources to the ambient air standards? One private analyst estimates that the EPA’s planned expenditures will cost between 665 and 4,050 lives every year. Remarkably, the agency does not challenge these estimates, but claims instead that it would be improper to consider them at all. Confronted with the sheer irrationality of the EPA’s refusal to account for the full range of public health consequences of its actions, EPA advocates usually offer two defenses. First, they claim that the 1970 Congress actually required the EPA to act irrationally and ignore the economic aspects of its public health air quality standards decisions. However, the text of the Clean Air Act says the exact opposite — that standards should be set consistent with the best dictates of practitioners of public health. As mentioned above, the public health takes into account both medical and economic considerations, and so should the EPA. The 1970 legislative history reconfirms this point by demonstrating that Congress self-consciously rejected an economics-free formulation of the standard-setting provisions that originally had passed the Senate. CONSIDERING COST The second and more nuanced point that EPA advocates make is that the agency has long claimed that it need only thoroughly consider all “health effects” (i.e., medical effects) in setting air quality standards and that this “long-standing interpretation” should be respected. Here the problem is that the EPA’s claim has been more honored in the breach than the observance. For example, the EPA did not challenge the D.C. Circuit’s ruling below that overturned the 1997 ozone standards. The court reasoned that the EPA failed to consider medical evidence of beneficial effects of ground-level ozone in preventing skin cancers and cataracts. At the same time, the EPA expressly limited the effect of both its 1997 air standards to emission reductions that can be achieved at a price of $10,000 per ton or less. Moreover, as documented by numerous commentators and admitted by former EPA personnel, the agency has likewise considered costs in making its most important past decisions on air quality standards. By masking its true decision-making criteria, the EPA has effectively insulated its decisions from judicial review, executive and congressional oversight, and public accountability. The results are standards that may well undermine, rather than promote, the public health. Now that the Clean Air Act’s central interpretive questions have reached the Supreme Court for the first time, we should all be confident that the Court will rule that the act must be implemented in a way that is rational, above-board, and, most important, consistent with the law as written. That will be a large and welcome change. Robin S. Conrad is senior vice president of the National Chamber Litigation Center, the public policy law firm of the U.S. Chamber of Commerce, which is both a respondent and cross-petitioner in this litigation.

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