No. 99-1257 

IN THE 

Supreme Court of the United States 

Supreme Court of the United States 

Supreme Court of the United States 

Supreme Court of the United States 

CAROL M. BROWNER, 
Administrator of the Environmental Protection Agency, et al., 

Petitioners, 

v. 

AMERICAN TRUCKING ASSOCIATIONS, INC., et al., 

Respondents. 

On Writ of Certiorari 
to the United States Court of Appeals 
for the District of Columbia Circuit 

BRIEF OF AMICI CURIAE 
ASSOCIATION OF AMERICAN PHYSICIANS & SURGEONS 
AND CENTER FOR INDIVIDUAL FREEDOM 
IN SUPPORT OF RESPONDENTS 

ERIK S. JAFFE 

Counsel of Record 
ERIK S. JAFFE, P.C. 
5101 34 

th Street, N.W. 
Washington, D.C. 20008 
(202) 237-8165 

Counsel for Amici Curiae 

TABLE OF CONTENTS 

Pages 

TABLE OF CONTENTS......................................................... i 

TABLE OF AUTHORITIES .................................................. ii 

INTEREST OF AMICI CURIAE........................................... 1 

SUMMARY OF ARGUMENT.............................................. 2 

ARGUMENT.......................................................................... 3 

I. CONGRESS MAY NOT DELEGATE POLITICAL 
CHOICES BETWEEN COMPETING AND IRREDUCIBLE 
VALUES. .........................................................................3 

A. The Nature of Legislative Action. ...........................5 

B. The Requirements of Adequate Legislative 

Guidance to Executive Agents.................................9 

II. SECTION 7409 VIOLATES THE NONDELEGATION 
DOCTRINE BY NOT GUIDING THE VALUE CHOICES 
FACED BY EPA.............................................................15 

A. The Unguided Value Choice Delegated to 

EPA........................................................................15 

B. Mere Consideration of Costs and Benefits 

Offers No Intelligible Principle. ............................25 

C. Invalidation Is The Appropriate Remedy For 

Improper Delegation. .............................................27 

CONCLUSION..................................................................... 28 

ii 

TABLE OF AUTHORITIES 

Pages 

Cases 

A.L.A. Schechter Poultry Corp. v. United States, 
295 U.S. 495 (1935).......................................................3, 11 

Alden v. Maine, 527 U.S. 706 (1999) ......................................4 

American Power & Light Co. v. SEC, 329 U.S. 
90 (1946)......................................................................10, 11 

American Trucking Ass’ns, Inc. v. EPA, 175 F.3d 
1027 (CADC 1999) (“ATA I”) ................................... passim 

American Trucking Ass’ns, Inc. v. EPA, 195 F.3d 
4 (CADC 1999) (“ATA II”)......................................6, 21, 28 

City of Boerne v. Flores, 521 U.S. 507 (1997) .........................4 

Environmental Defense Fund v. EPA, 598 F.2d 
62 (CADC 1978)................................................................25 

Field v. Clark, 143 U.S. 649 (1892) ........................3, 6, 11, 15 

Industrial Union Dep’t, AFL-CIO v. American 

Petroleum Inst., 448 U.S. 607 (1980) 
(“Benzene”)................................................................5, 6, 28 

INS v. Chadha, 462 U.S. 919 (1983) .....................................13 

J.W. Hampton, Jr. & Co. v. United States, 276 

U.S. 394 (1928)....................................................................3 

Lead Industries Ass’n v. EPA, 647 F.2d 1130 
(CADC), cert. denied, 449 U.S. 1042 (1980) ..............23, 24 

Loving v. United States, 517 U.S. 748 (1996) ............... passim 

Mistretta v. United States, 488 U.S. 361 (1989)............ passim 

iii 

Opp Cotton Mills, Inc. v. Administrator, Wage 
and Hour Div. of Dept. of Labor, 312 U.S. 126 
(1941).................................................................................11 

Pegram v. Herdrich, -- U.S. --, 120 S. Ct. 2143 
(2000).................................................................................27 

Seminole Tribe of Florida v. Florida, 517 U.S. 44 
(1996)...................................................................................4 

Touby v. United States, 500 U.S. 160 (1991) ........................14 

United States v. Lopez, 514 U.S. 549 (1995)...................4, 7, 8 

United States v. Morrison, -- U.S. --, 120 S. Ct. 
1740 (2000)..........................................................................4 

Yakus v. United States, 321 U.S. 414 (1944)...........6, 9, 15, 21 

Statutes 

42 U.S.C. § 7408..............................................................19, 26 

42 U.S.C. § 7409............................................................ passim 

42 U.S.C. § 7412..............................................................18, 19 

Regulations 

62 Fed. Reg. 38,656 (1997) .............................................16, 23 

62 Fed. Reg. 38,688 (1997) ...................................................22 

Constitutional Provisions 

U.S. Const. art. I, § 1 ...............................................................3 

Other Authorities 

123 Cong. Rec. S9423 (daily ed. June 10, 1977)...................24 

123 Cong. Rec. S9426 (daily ed. June 10, 1977)...................24 

H.R. Rep. No. 95-294, 95 

th Cong., 1 

st Sess. (1977)...............24 

IN THE 

Supreme Court of the United States 

Supreme Court of the United States 

Supreme Court of the United States 

Supreme Court of the United States 

CAROL M. BROWNER, 
Administrator of the Environmental Protection Agency, et al., 

Petitioners, 

v. 

AMERICAN TRUCKING ASSOCIATIONS, INC., et al., 

Respondents. 

On Writ of Certiorari 
to the United States Court of Appeals 
for the District of Columbia Circuit 

INTEREST OF AMICI CURIAE1 

The Association of American Physicians & Surgeons 
(“AAPS”) is a nonprofit organization dedicated to defending 
the practice of private medicine. Founded in 1943, AAPS 
publishes a newsletter and journal and participates in litiga- 
tion in furtherance of its goals of limited government and free 
markets. Central to the interests of AAPS are the enforce- 
ment of constitutional limits on the exercise of government 
power in general and on the administrative state in particular. 

1 This brief is filed with the written consent of all parties. No counsel for 
a party authored this brief in whole or in part, nor did any person or entity, 
other than amici, their members, or their counsel make a monetary contri- 
bution to the preparation or submission of this brief. 

2 

Sweeping delegations of authority in the areas of health and 
medicine are extremely prone to abuse and difficult to police. 
AAPS has extensive experience challenging the regulatory 
edicts of an unresponsive federal health bureaucracy and 
knows first-hand the nature of administrative abuse that 
comes from lack of adequate legislative direction and control. 
AAPS thus views a revitalized nondelegation doctrine as es- 
sential to a limited government respectful of free markets and 
free citizens. 

The Center for Individual Freedom (“CIF”) is a nonprofit 
organization with the mission to investigate, explore, and 
communicate in all areas of individual freedom and individual 
rights. It believes that the greatness of our Constitution lies 
not only in its protection of individual freedom through spe- 
cific individual rights forbidding certain uses of power, but 
also in its structural protection of freedom through the many 
constraints it places on any exercise of power. CIF thinks the 
nondelegation doctrine should be applied with vigor and 
courage. Rather than fear any resulting inefficiency from 
demanding that Congress itself exert more guidance on the 
rules governing society, we should applaud such inefficiency 
as a bulwark preserving individual freedom. 

SUMMARY OF ARGUMENT 

This brief will address the first question presented by Pe- 
titioners: Whether 42 U.S.C. § 7409, the Clean Air Act pro- 
vision directing EPA to set and revise national ambient air 
quality standards (“NAAQS”), is an unconstitutional delega- 
tion of legislative power. It is the duty of Congress to make 
the value choices that are inherent in legislative decision 
making. While Congress may delegate the execution of those 
choices to various agents, it may not delegate the value 
choices themselves. In this case Congress has done precisely 
that which is forbidden. Although Congress has provided a 
variety of relevant considerations to be consulted in setting 
NAAQS, it has not provided any guidance as to how those 

3 

considerations are to be weighed against each other. Regard- 
less whether § 7409 limits EPA to consideration of only direct 
health effects from pollutants or also allows consideration of 
the human and economic costs of pollution control, that pro- 
vision constitutes an unlawful delegation insofar as it permits 
EPA to set nonzero NAAQS for nonthreshold pollutants but 
provides no intelligible principle directing EPA where to set 
such NAAQS. 

ARGUMENT 

I. CONGRESS MAY NOT DELEGATE POLITICAL CHOICES 

BETWEEN COMPETING AND IRREDUCIBLE VALUES. 

The Constitution commands that “All legislative powers 
herein granted shall be vested in a Congress of the United 
States.” U.S. Const. art. I, § 1. Derived from this fundamen- 
tal command, the basic statement of the nondelegation doc- 
trine has been established for over a century: 

[W]e long have insisted that “the integrity and mainte- 
nance of the system of government ordained by the Con- 
stitution” mandate that Congress generally cannot dele- 
gate its legislative power to another Branch. 

Mistretta v. United States, 488 U.S. 361, 371-72 (1989) 
(quoting Field v. Clark, 143 U.S. 649, 692 (1892)). While 
recognizing that Congress may seek “assistance from another 
branch,” the nondelegation doctrine requires Congress to “lay 
down by legislative act an intelligible principle to which [its 
agent] is directed to conform.” J.W. Hampton, Jr. & Co. v. 
United States, 276 U.S. 394, 406, 409 (1928). 

This Court has been unfailing in confirming the existence 
of the nondelegation doctrine and its requirement that Con- 
gress provide an intelligible principle to guide the actions of 
its agents. See, e.g., A.L.A. Schechter Poultry Corp. v. United 
States, 295 U.S. 495, 529-30 (1935) (“Congress is not per- 
mitted to abdicate or to transfer to others the essential legisla- 

4 

tive functions,” which consist of “laying down policies” and 
“establish[ing] the standards of legal obligation”); Loving v. 
United States, 517 U.S. 748, 758, 771 (1996) (“fundamental 
precept of the delegation doctrine is that the lawmaking func- 
tion belongs to Congress … and may not be conveyed to an- 
other branch or entity”; “intelligible-principle rule seeks to 
enforce the understanding that Congress may not delegate the 
power to make laws”). 

Yet while this fundamental constitutional doctrine is oft- 
stated, it is rarely enforced. As this Court noted in Loving v. 
United States, “[t]hough in 1935 we struck down two delega- 
tions for lack of an intelligible principle, we have since up- 
held, without exception, delegations under standards phrased 
in sweeping terms.” 517 U.S. at 771 (citations omitted). Un- 
fortunately, the history of the nondelegation doctrine can 
seem a history filled with excuses for not applying it. 

Amici respectfully suggest that if the Constitution indeed 
contains a nondelegation doctrine – and we believe it does – 
then this Court is obliged to give identifiable content to that 
doctrine. Declaring a constitutional principle that in practice 
is never enforced only reduces respect for the Constitution 
and encourages disregard of all constitutional boundaries. 
Such disregard had become apparent concerning Congress’s 
enumerated power under the Commerce Clause, and this 
Court is just recently beginning to re-establish coherent con- 
stitutional limits on that power. See United States v. Morri- 
son, -- U.S. --, 120 S. Ct. 1740 (2000); United States v. Lopez, 
514 U.S. 549 (1995).2 The Constitution’s careful allocation 
of powers and its constraints on the means of their exercise 
are likewise deserving of renewed attention as they play a vi- 

2 In other areas as well, this Court has rediscovered the constitutional lim- 
its on government action. See Seminole Tribe of Florida v. Florida, 517 
U.S. 44 (1996) (Eleventh Amendment immunity); Alden v. Maine, 527 
U.S. 706 (1999) (state sovereign immunity); City of Boerne v. Flores, 521 
U.S. 507 (1997) (limits on power under § 5 of the Fourteenth Amendment). 

5 

tal role in ensuring the limited government envisioned by the 
Founders and in constraining the too-easy exercise of author- 
ity at the expense of liberty. 

Several members of this Court have already shown some 
reluctance to continue merely reciting and then ignoring the 
nondelegation doctrine. Thus, in a delegation case involving 
crimes by members of the military, Justice Thomas relied 
only upon the President’s unique authority as Commander in 
Chief and significantly took “no position with respect to Con- 
gress’ power to delegate authority or otherwise alter the tra- 
ditional separation of powers outside the military context.” 
Loving, 517 U.S. at 778 (Thomas, J., concurring in the judg- 
ment). And in a case involving regulation of health and 
safety in the workplace, then-Justice Rehnquist went further, 
writing that “[i]f we are ever to reshoulder the burden of en- 
suring that Congress itself make the critical policy decisions, 
these are surely the cases in which to do it.” Industrial Union 
Dep’t, AFL-CIO v. American Petroleum Inst., 448 U.S. 607, 
687 (1980) (“Benzene”) (Rehnquist, J., concurring in the 
judgment). Such questioning of this Court’s reticence is well- 
taken, especially because “ensuring” that Congress make 
those decisions assigned to it by the Constitution, though per- 
haps a “burden,” is also a duty assigned to this Court by that 
same Constitution. 

This case presents an opportunity for all members of the 
Court to revisit whether its nondelegation jurisprudence has 
drifted too far from first principles and hence distorted the 
constitutional scheme. It is time to return to those first prin- 
ciples and give content to the neglected but vital constitu- 
tional requirement that only Congress may make the laws. 

A. The Nature of Legislative Action. 

In order to give content to the nondelegation doctrine, it is 
first necessary to define that which may not be delegated – 
the legislative power. “The essentials of the legislative func- 
tion are the determination of the legislative policy and its 

6 

formulation and promulgation as a defined and binding rule 
of conduct.” Yakus v. United States, 321 U.S. 414, 424 
(1944). Then-Justice Rehnquist in the Benzene case aptly 
characterized “the very essence of legislative authority under 
our system” as the making of “the hard choices, and not the 
filling in of the blanks.” 448 U.S. at 687 (Rehnquist, J., con- 
curring in the judgment); see also Field v. Clark, 143 U.S. at 
693 (legislative power is concerned with the “expediency or 
the just operation” of particular commands, whereas the exe- 
cution of the law turns on ascertaining “the existence of a 
particular fact” upon which a legislative command may be 
contingent); American Trucking Ass’ns, Inc. v. EPA, 195 F.3d 
4, 15 (CADC 1999) (“ATA II”) (Silberman, J., dissenting 
from denial of rehearing en banc) (“[The purpose of the non- 
delegation doctrine] is, of course, to ensure that Congress 
makes the crucial policy choices that are carried into law. 
The ability to make those policy choices (even if only at a 
broad level of generality) is what is meant by legislative 
power.”).3 The hard and crucial policy choices required to be 
made by Congress typically have one thing in common: they 
each involve a clash of competing values and interests that 
cannot be reconciled by merely mechanical methods, but 
must be decided by unvarnished political considerations. 

This conception of legislative power fits within the 
broader separation-of-powers principle integral to the struc- 
ture and function of our constitutional democracy. As Justice 
Kennedy, writing for the Court, observed: 

By allocating specific powers and responsibilities to a 
branch fitted to the task, the Framers created a National 

3 Cf. Mistretta v. United States, 488 U.S. 361, 419-20 (1989) (Scalia, J., 
dissenting) (“As John Locke put it almost 300 years ago, ‘[t]he power of 
the legislative … being only [the power] to make laws, and not to make 
legislators, the legislative can have no power to transfer their authority of 
making laws, and place it in other hands.’ 
J. Locke, Second Treatise of 

Government 87 (R. Cox ed.1982) (emphasis added).”) 

7 

Government that is both effective and accountable. Ar- 
ticle I’s precise rules … make Congress the branch most 
capable of responsive and deliberative lawmaking. 

… 

The clear assignment of power to a branch, furthermore, 
allows the citizen to know who may be called to answer 
for making, or not making, those delicate and necessary 
decisions essential to governance. 

Loving, 517 U.S. at 757-58. Furthermore, what Justice Ken- 
nedy previously has said concerning the roles of the States 
and the federal government under Our Federalism is readily 
and appropriately transposed to the requirement of nondele- 
gation between branches of the federal government: 

The theory that two [branches] accord more liberty 
than one requires for its realization two distinct and dis- 
cernable lines of political accountability …. [C]itizens 
must have some means of knowing which of the two 
[branches] to hold accountable for the failure to perform 
a given function. ‘[Separation of powers] serves to as- 
sign political responsibility, not to obscure it.’ … Were 
the [Executive] to take over the regulation of entire areas 
of traditional [congressional] concern, … the boundaries 
between the spheres of [legislative and executive] 
authority would blur and political responsibility would 
become illusory. … The resultant inability to hold ei- 
ther branch of the government answerable to the citizens 
is more dangerous even than devolving too much 
authority to [a single branch]. 

Lopez, 514 U.S. at 576-77 (alteration added, citations omit- 
ted). Like federalism, the nondelegation doctrine ensures 
proper accountability for difficult and perhaps divisive 
choices by demanding that Congress make those choices and 
make them in a way that is transparent to the agents who must 
execute them, to the courts that must review them, and to the 
citizens who must finally judge them. 

8 

Despite agreement about the existence and importance of 
the delegation doctrine, the difficulty over the years has been 
in applying the doctrine. That difficulty was summed up by 
Justice Scalia, who offered that once it is conceded that 
“some judgments involving policy considerations” must be 
left open by Congress, “the debate over unconstitutional dele- 
gation becomes a debate not over a point of principle but over 
a question of degree.” Mistretta, 488 U.S. at 415-16 (Scalia, 
J. dissenting). As with questions of federalism, once non- 
delegation questions are defined as merely ones “of degree,” 
it becomes tempting for courts to leave nondelegation con- 
cerns to the political process and to entrust the political 
branches with abiding their own duty to preserve the consti- 
tutional balance. But “the absence of structural mechanisms 
to require those officials to undertake this principled task, and 
the momentary political convenience often attendant upon 
their failure to do so, argue against a complete renunciation of 
the judicial role.” Lopez, 514 U.S. at 578 (Kennedy, J., con- 
curring). Like federalism, the nondelegation doctrine “is too 
essential a part of our constitutional structure and plays too 
vital a role in securing freedom for us to admit inability to 
intervene when one or the other level of Government has 
tipped the scales too far.” Id. And indeed, even Justice 
Scalia recognizes that “[a]t some point the responsibilities 
assigned [by Congress to the Executive] can become so ex- 
tensive and so unconstrained that Congress has in effect dele- 
gated its legislative power.” Loving, 517 U.S. at 777 (Scalia, 
J., concurring in part and concurring in the judgment). The 
task, therefore, is to generate a workable formulation for 
finding where that point might be. 

Amici believe that such formulation must start with a 
more stringent version of the intelligible-principle require- 
ment that focuses on the necessarily political choices required 
in balancing competing and irreconcilable values. While no 
formulation can eliminate questions of degree at the margins, 
focusing on congressional value choices can certainly expand 

9 

the role of constitutional principle and help “prevent Congress 
from forsaking its duties.” Loving, 517 U.S. at 758. 

B. The Requirements of Adequate Legislative 

Guidance to Executive Agents. 

An endlessly generous conception of the requirement for 
“intelligible” principles in legislation renders unenforceable 
the principle that in almost all instances “the basic policy de- 
cisions governing society are to be made by” Congress. Mis- 
tretta, 488 U.S. at 415 (Scalia, J., dissenting). “What legis- 
lated standard, one must wonder, can possibly be too vague to 
survive judicial scrutiny, when we have repeatedly upheld, in 
various contexts, a ‘public interest’ standard?” Id. at 416. If 
the nondelegation doctrine is to have meaning, therefore, the 
requirement of an intelligible principle must itself be given 
intelligible content. 

Amici propose that for any legislative guidance regarding 
further prospective rulemaking to qualify as an intelligible 
principle it must, in addition to the current requirements for 
channeling the scope of rulemaking authority, identify those 
policy values that provide both the bases of and the limits on 
such rulemaking and articulate a reviewable means for re- 
solving conflicts between and calibrating the balance among 
competing values. It is only through this added element that 
executive agents can know Congress’s legislative will and 
that courts will be able to distinguish between the execution 
of congressional policy and the administrative exercise of ab- 
dicated legislative authority. 

Substantive Guidance Sufficient for Accountability. An 
essential means of determining whether legislation provides 
an adequately intelligible principle for guiding subsequent 
behavior is to ask if “it would be impossible in a proper pro- 
ceeding to ascertain whether the will of Congress has been 
obeyed.” Yakus, 321 U.S. at 426. For it is only when the 
“legislative policies and standards [are] clear” that “judicial 
review of the remedies adopted by the [agency can] safe- 

10 

guard[] against statutory or constitutional excesses.” Ameri- 
can Power & Light Co. v. SEC, 329 U.S. 90, 106 (1946). In 
many cases, however, courts have lacked such clear guidance 
and thus often concluded that an agency’s policy choices 
were unreviewable exercises of administrative discretion. 

Requiring Congress to identify the values both advancing 
and restraining administrative action, and to address conflicts 
and balancing among those values, both comports with the 
essence of law making and lessens a central tension of ad- 
ministrative law: the need to judge administrative determina- 
tions but the inability to substitute judicial opinions for ad- 
ministrative discretion on matters of policy. When Congress 
then chooses to enlist agencies to execute its will, the required 
policy-making hierarchy will give direction to those agencies 
on how to make subsidiary policy decisions and will provide 
a legislative standard by which courts can judge those policy 
decisions. Executive agents thus can be made accountable 
not just for the process by which they make decisions, but for 
the substance of those decisions as well. 

In addition, requiring that the fundamental value balance 
be part of the legislation itself (rather than hidden in the ad- 
ministrative process) ensures the political accountability for 
Congress that is a central purpose of the nondelegation doc- 
trine. It will no longer be sufficient to articulate and take 
credit for only the popular half of legislative policy – such 
falsely singular purposes as to protect health, to feed the hun- 
gry, and to serve the public interest. Instead, Congress also 
will have to identify and take responsibility for the competing 
policies that necessarily limit such self-serving declarations of 
purpose. Legislation necessarily involves hard choices 
among competing values and interests, and forcing those 
choices into the law, rather than allowing them to be buried in 
the administrative process, ultimately “allows the citizen to 
know who may be called to answer for making, or not mak- 
ing, those delicate and necessary decisions essential to gov- 
ernance.” Loving, 517 U.S. at 758. 

11 

Complex Facts Do Not Excuse Hard Value Choices. A 
reluctance to enforce the nondelegation doctrine has some- 
times been attributed to the notion that in “an increasingly 
complex society Congress obviously could not perform its 
functions” without assistance from the other branches. Opp 
Cotton Mills, Inc. v. Administrator, Wage and Hour Div. of 
Dept. of Labor, 312 U.S. 126, 145 (1941). Even assuming 
such congressional inability were true, it nonetheless begs the 
question of what type of help is required or permitted. In 
Amici’s view, Congress may obtain help in analyzing com- 
plex facts, in identifying difficult policy choices and compet- 
ing social values, and in studying the consequences of various 
legislative responses. What Congress must do for itself, how- 
ever, is make the final determinations of which policies to 
pursue, which values will take precedence, and how far any 
given trade-off will go. 

Although past cases are hardly uniform on the point, the 
concern over Congress’s ability to handle complexity and 
detail has often – and more appropriately – been addressed to 
the facts and circumstances to which legislation will apply, 
not to the basic task of establishing relevant value hierarchies 
and resolving value conflicts. Thus, in Schechter Poultry, this 
Court recognized “the necessity of adapting legislation to 
complex conditions involving a host of details with which the 
national legislature cannot deal directly.” 295 U.S. at 
529-530. In Opp Cotton Mills, this Court was concerned that 
Congress not be “obliged to find all the facts subsidiary to” its 
legislative policy decisions. 312 U.S. at 145. And in Ameri- 
can Power & Light, “the necessities of modern legislation 
dealing with complex economic and social problems” were 
said to make it inefficient to require Congress “to appraise 
before-hand the myriad situations to which it wishes a par- 
ticular policy to be applied and to formulate specific rules for 
each situation.” 329 U.S. at 105; see also Field v. Clark, 143 
U.S. at 694 (legislature “can make a law to delegate a power 
to determine some fact or state of things upon which the law 

12 

makes … its own action depend”) (citation and quotation 
marks omitted). Thus, whatever “necessities” may arise from 
the complexities of modern problems, it should be sufficient 
for Congress to receive assistance regarding the facts and cir- 
cumstances of those problems, without the need for others to 
also make the policy choices that will be overlaid upon those 
varying facts and circumstances.4 

Any fear that requiring Congress to make even its own 
value choices “would divert that branch from more pressing 
issues, and defeat the Framers’ design of a workable National 
Government,” Loving, 517 U.S. at 758, is unwarranted. 
While there certainly are many issues vying for the attention 
of Congress, one might wonder whether Congress’s already 
prodigious grasp now exceeds the scope of its constitutionally 
proper reach, thus creating the supposed scarcity in its avail- 
able attention. As Congress’s grasp is once again confined to 
matter genuinely involving interstate commerce, for example, 
it may find more time to “divert” to attending its constitu- 
tional duties when formulating legislation. Furthermore, in- 
sofar as Congress’s limited capacity to make complex and 
difficult decisions limits the number of issues it can address 
or the number of laws it can pass, such limits are entirely con- 
sistent with the constitutional scheme. It may be less efficient 
to constrain Congress’s capacity so, but such inefficiency is 

4 And if it were still deemed too burdensome for Congress to make the 
requisite value decisions at the outset, it could presumably seek further 
assistance by requesting of its agents proposed legislation resolving the 
value questions, which Congress would then approve, modify, or reject. 
While easing Congress’s initial legislative load, such an approach would 
still preserve the constitutionally required checks on the adoption of a new 
law and would keep with Congress the affirmative responsibility for the 
value choices in such a new law. The D.C. Circuit below seemed to rec- 
ognize this alternate course when it observed that “if EPA concludes that 
there is no principle available, it can so report to the Congress, along with 
such rationales as it has for the levels it chose, and seek legislation ratify- 
ing its choice.” American Trucking Ass’ns, Inc. v. EPA, 175 F.3d 1027, 
1040 (CADC 1999) (“ATA I”). 

13 

precisely the type of structural check that the Framers used to 
limit the exercise of national power. This type of limit also 
forces Congress to prioritize its legislative goals in light of its 
limited institutional resources, thus ensuring that such laws as 
it does pass are those most appropriate for national, rather 
than state or local, attention. Finally, even if it were today 
thought desirable to supplement congressional capacity to ad- 
dress multiple and complicated issues, “there are many desir- 
able dispositions that do not accord with the constitutional 
structure we live under. 

And in the long run the improvisa- 
tion of a constitutional structure on the basis of currently per- 
ceived utility will be disastrous.” Mistretta, 488 U.S. at 427 
(Scalia, J., dissenting). 

Post-Hoc Legislative Review Is Insufficient. The occa- 
sional suggestion that Congress’s post hoc oversight of its 
agents is sufficient to overcome nondelegation problems, 
American Trucking Ass’ns, Inc. v. EPA, 175 F.3d 1027, 1061 
(CADC 1999) (“ATA I”) (Tatel, J., dissenting), inverts the 
constitutional limits on the legislative power. Cf. INS v. 
Chadha, 462 U.S. 919, 954-955 (1983) (Congress may not 
enact laws without bicameral passage and presentment of the 
bill to the President). Before imposing obligations on the 
citizenry, Congress must overcome inertia and objection and 
a possible veto by the President. To require instead only that 
Congress act as a post hoc reviewer of the legislative acts of 
its agents would transform those safeguards against too-facile 
exercise of authority into a protection for the unguided exer- 
cise of authority by administrative agents. 

Impact on Precedent. A more stringent version of the 
intelligibile-principle requirement might well have changed 
the results of some past cases, and certainly would have re- 
quired further analysis in many others. But it seems quite 
possible that many past results would have been the same 
even under such further analysis. 

For example, Mistretta involved the special context of 
sentencing, in which the statute did “no more than fetter the 

14 

discretion of sentencing judges to do what they have done for 
generations – impose sentences within the broad limits estab- 
lished by Congress.” 488 U.S. at 396. In addition to such 
context, this Court also held that Congress “in actuality … 
legislated a full hierarchy of punishment … and stipulated the 
most important offense and offender characteristics to place 
defendants within these categories.” Id. at 377. Congress 
also had set statutory ranges of punishment for all crimes, 
further limited the deviation between minimum and maxi- 
mum sentences under the eventual sentencing guidelines, and 
identified current average sentences as a benchmark. Id. at 
375. And while the statute in Touby v. United States con- 
tained the seemingly broad authority to regulate new drugs 
that pose an “imminent hazard to public safety,” it also con- 
tained quite detailed guidance as to what might constitute 
such a hazard. 500 U.S. 160, 165-166 (1991) (discussing 
multi-layered elements of the imminent-hazard determina- 
tion). The statute further required separate findings that a tar- 
geted drug “‘has a high potential for abuse,’ that it ‘has no 
currently accepted medical use in treatment in the United 
States,’ and that ‘[t]here is a lack of accepted safety for use of 
the drug ... under medical supervision.’” Id. at 167. 

Several decisions also have distinguishing elements re- 
lating to the special nature of the power at issue or the special 
authority of the agent. Thus, in the military-justice case of 
Loving v. United States, the delegated duty was “interlinked 
with duties already assigned to the President by express terms 
of the Constitution, and the same limitations on delegation do 
not apply ‘where the entity exercising the delegated authority 
itself possesses independent authority over the subject mat- 
ter.’” 517 U.S. at 772 (citation omitted). In Field v. Clark, 
not only was the subject matter that of foreign relations and 
trade, but the alleged delegation involved a mere finding by 
the President of “the existence of a particular fact” and 
“[n]othing involving the expediency or the just operation of 
such legislation was left to the determination of the presi- 

15 

dent.” 143 U.S. at 693. And in Yakus, the exigencies of war 
may have caused this Court to be more lenient than otherwise, 
and even then there was at least some arguable guidance, with 
price-stabilization benchmarks starting at “the prices prevail- 
ing between October 1 and October 15, 1941,” and later re- 
vised “on the basis of the levels which existed on September 
15, 1942.” 321 U.S. at 421, 423. 

The point of these examples is not to pre-determine any 
other specific cases, but rather to show that while a reinvigor- 
ated nondelegation doctrine may well conflict with (and 
hence overrule) much loose language and a number of results 
from prior cases, it need not require repudiation of all results 
reached under more lenient past applications of that doctrine. 

II. SECTION 7409 VIOLATES THE NONDELEGATION 
DOCTRINE BY NOT GUIDING THE VALUE CHOICES 
FACED BY EPA. 

Applying the above principles to § 7409, Congress has 
passed off to EPA numerous unguided value choices inherent 
in setting NAAQS and consequently has violated the non- 
delegation doctrine. What § 7409 does is merely tout one half 
of the values at stake – health, safety, and welfare – without 
offering any intelligible principle on how much is enough. 
Whether viewed strictly in EPA’s direct-health terms or more 
sensibly viewed to include the full range of monetary and 
human costs and benefits associated with pollution control, 
EPA’s task under § 7409 requires the agency to make the type 
of fundamental value choices that Congress may not delegate. 

A. The Unguided Value Choice Delegated to EPA. 

The initial requirements for setting and revising NAAQS 
are that they must be set at levels “requisite to protect the 
public health” and must provide an “adequate margin of 
safety.” § 7409(b)(1). If understood as imposing a legislative 
requirement of zero-harm and zero-risk, this language might 
provide fairly discrete, though absurd and potentially uncon- 

16 

stitutional, guidance for EPA. Thus, if one were to accept 
EPA’s speculative and occasionally irrational linear no- 
threshold hypothesis regarding harm from certain pollutants, 
these requirements would seem to require NAAQS levels set 
at zero concentration.5 

Nobody interprets § 7409 in this way, however, and 
therein lies the problem. Thus, while EPA views its task as 
being to “reduce risks sufficiently to protect public health 
with an adequate margin of safety,” it “recogniz[es] that [PM] 
standards will not be risk-free.” 62 Fed. Reg. at 38,656 
(1997). But if it is accepted that EPA can set NAAQS that 
allow some harm to health and welfare, then the statute pro- 
vides no principle – intelligible or otherwise – as to how 
much harm is permissible or required. “For EPA to pick any 
non-zero level it must explain the degree of imperfection 
permitted. The factors that EPA has elected to examine for 
this purpose in themselves pose no inherent non-delegation 
problem. But what EPA lacks is any determinate criterion for 
drawing lines. 

It has failed to state intelligibly how much is 

too much.” ATA I, 175 F.3d at 1034. In fact, § 7409 fails ex- 
plicitly even to identify competing values that might justify 
accepting some risk of harm from pollutants, much less to 
prioritize or to calibrate such values against the otherwise 
blindly monolithic policy of protecting health and welfare 
against the risks of pollutants. EPA’s supposed recognition 
that “its mandate is not to set standards more stringent than 
requisite to protect against health effects of public health sig- 
nificance,” Pet. Br. 33, offers no intelligible guidance because 
it merely adds a second fully indeterminate standard atop the 

5 The linear no-threshold hypothesis that EPA often applies is, in many 
cases, demonstrably false. Vitamins and such EPA-regulated pollutants as 
trace minerals and radiation are unhealthful or lethal in high doses, but are 
essential to life in small doses. Yet EPA hypothesizes low-dose harm by 
extrapolating from high doses and then ignores all other consequences of 
its action. This approach uses tiny doses of “pollutants,” which can be 
measured, as a surrogate for health, which cannot be measured directly. 

17 

first. Given EPA’s mandate to prevent unknown harms, it is 
difficult to imagine any health effect that could not be used to 
justify EPA regulation. 

Without intelligible principles with which to determine 
how much protection is enough, EPA’s decisions take on airs 
of the absurd. The typical external constraints on such fa- 
cially unlimited goals as health and safety are unavailable, 
hence any nonzero stopping point for NAAQS becomes either 
arbitrary or disingenuous. For example, the decision to per- 
mit ozone levels that cause only temporary and reversible 
harm to human health makes no sense in EPA’s direct-health- 
only paradigm. Why wouldn’t EPA prevent such harms. 
Surely even temporary pain and suffering have some negative 
value in any honest calculus of public health. In the real 
world, such harms might be tolerated because eliminating 
them would be infeasible, overly expensive, or would have 
other collateral consequences deemed to outweigh the poten- 
tial benefits. But in EPA’s surreal direct-health-only world, 
NAAQS must be assumed to be entirely without costs or 
other indirect consequences. Given such an assumption, any 
decision to ignore even limited harms thus is either arbitrary 
or is made without disclosing the actual values driving EPA’s 
choices.6 

6 For nonthreshold pollutants, the only check on setting all NAAQS at 
zero is the possibility that a pollutant has some positive direct health effect 
which may outweigh its negative effects at some optimum concentration. 
Such countervailing direct health effects would, effectively, turn the pol- 
lutant into a net threshold pollutant, at which point EPA would be required 
to set the NAAQS at some indeterminate point below the threshold. EPA 
opposed even this minimal internal check on its health-related value 
choices, arguing that it was not obliged to look at beneficial health effects 
from pollutants. ATA I, 175 F.3d at 1051. This is bitterly ironic given that 
the beneficial effects of various trace pollutants might actually be easier to 
demonstrate than the speculative harm from low doses, and EPA’s over- 
exuberance might well be costing lives rather than saving them. 

18 

Claims of Complexity Only Mask Value Choices. In de- 
fense of EPA’s unguided policy discretion, Petitioners claim 
that the agency must make “highly technical judgments about 
the health and welfare effects of particular pollutants.” Pet. 
Br. 25. That claim ultimately misses the point. The technical 
judgments are just the first steps to the NAAQS – identifying 
various effects that may or may not justify regulation. 
Whether such effects are determined once, or periodically re- 
visited “based on the ‘latest scientific knowledge,’” Pet. Br. 
28, does not change the fundamental nondelegation problem. 
For it is not the fact-finding steps, but rather the unguided fi- 
nal step – deciding whether it is worth it or desirable to regu- 
late the effects so found – that violates the nondelegation 
doctrine. The final step is not a “technical” judgment, it is a 
value judgment that happens to have technical information as 
one of its considerations. 

Likewise, the claim that further congressional guidance is 
not possible given the complex technical nature of the field is 
incorrect. Nothing precludes Congress from giving policy 
guidance that can be applied in light of such technical or vari- 
able inputs. In other sections of the CAA, for example, Con- 
gress directed EPA to require the best available technology or 
to target a standard based upon achievements of the best cur- 
rent practices in emission control. See 42 U.S.C. § 7412(d)(3) 
(basing “maximum degree of reduction in emissions” on “the 
emission control that is achieved in practice by the best con- 
trolled similar source”); id. § 7412(g)(2)(A) (referring to 
“maximum achievable control technology emission limita- 
tion”). Those standards offer discrete guidance while still al- 
lowing for evolving scientific knowledge.7 

7 Standards with discrete or determinable external referents do not guide 
subsequent policy discretion, but instead represent Congress making the 
relevant value choice itself by providing the balance and then directing the 
agency to fill in the blanks. Other discrete standards of this type could be 
expressed in terms of percentage reductions in mortality or maximum re- 
duction in pollution up to a specified cost, thus making the value trade- 

19 

By pretending that the NAAQS revision is merely a sci- 
entific decision, rather than recognizing it as policy and value 
decision based upon scientific information, EPA ultimately 
masks the value choices being made behind a veneer of sup- 
posedly objective science. Hiding the ball in that manner, 
combined with the often impenetrable morass of the adminis- 
trative rulemaking process, affirmatively undermines non- 
delegation values by reducing accountability for EPA’s unac- 
knowledged value choices.8 

Scientific Guidance Does Not Provide Policy Guidance. 

Somewhat in tension with the claimed need for broad discre- 
tion in the face of scientific complexity, Petitioners also claim 
that Congress has provided sufficient substantive guidance 
with the requirement that NAAQS must be based on the air 
quality criteria under § 7408, which in turn must reflect “the 
latest scientific knowledge” and other variable information. 
Pet. Br. 31. Petitioners also claim to find adequate limits in 
EPA’s requirement to consider and explain any deviations 
from the advice of the Clean Air Scientific Advisory Com- 
mittee (“CASAC”) regarding air quality criteria and stan- 
dards. Pet. Br. 23; see also ATA I, 175 F.3d at 1059 (Tatel, J., 
dissenting) (because CASAC brings “scientific methods to 
their evaluation of the Agency’s Criteria Document and Staff 
Paper, CASAC provides an objective justification for the 
pollution standards the Agency selects”). 

Neither the air quality criteria nor the latest scientific in- 
formation imposes any substantive limit on the final NAAQS 

offs but still accommodating changing knowledge. See, e.g., 42 U.S.C. 
§ 7412(c)(9)(B)(i) (delisting of certain source categories based upon the 
absence of “a lifetime risk of cancer greater than one in one million to the 
individual in the population who is most exposed to emissions of such 
pollutants from the source”). 

8 EPA’s failure accurately to define and to acknowledge critical choices in 
the decision-making process also conflicts with the basics of the scientific 
method, which relies upon open and honest peer review and criticism to 
hone hypotheses regarding any given question. 

20 

that EPA may impose. They are merely factors in the mix, 
and absent overwhelming evidence that a pollutant could 
never cause harm, EPA claims it is free to impose NAAQS 
based on even unknown and speculative risks. See Pet. Br. 

28. It is hard to imagine any pollutant for which EPA could 
not assert a basis for regulation or any NAAQS level it could 
not justify under these supposed limits. 

For example, Petitioners’ claim that existing NAAQS lev- 
els for ozone and PM were effectively an upper boundary be- 
cause there were a “wide range of adverse health effects” be- 
low those levels, Pet. Br. 31, could just as easily have been 
inverted into a claim that such effects were insufficiently 
certain or did not rise to the level of a “public” health prob- 
lem. The mere existence of some health effects is insufficient 
to require EPA to set a level lower than the prior NAAQS. 
And while EPA points to arbitrary lower boundaries of its 
own selection, Pet. Br. 31-32, those boundaries were not dic- 
tated by the statute. That EPA today came up with one result 
in response to various criteria does not deny that it could have 
come up with any other results merely by expressing a differ- 
ent “policy” choice. Section 7409 simply provides no limit 
on such choices by EPA. 

CASAC’s involvement likewise provides no intelligible 
principle directing EPA’s policy discretion. EPA is free to 
disagree with CASAC’s recommendations, and is guided only 
in the manner of its expressing, not in the values underlying, 
any potential disagreement. While CASAC may arguably 
provide some measure against which to test EPA’s factual 
determinations, CASAC’s policy recommendations hardly 
offer an “objective justification” for the eventual NAAQS. 
The policy preferences of scientists are no more objective 
than the policy preferences of EPA or of Congress. That is 
the nature of policymaking – it consists of choices made 
among competing values, not among objective facts. While 
CASAC may provide EPA with scientific information re- 
garding elements of the policy choice to be made, the final 

21 

choice of NAAQS is no more scientific than any other policy 
decision.9 

Procedural Checks Do Not Make Up for Substantive 
Limits. As for Petitioners’ reliance on the various procedural 
checks of rulemaking and judicial review, Pet. Br. 23-24, the 
former does not address the substantive delegation problem 
and the latter is only as good as the supposedly intelligible 
principle set down in the first place. Procedural requirements 
placed on rulemaking merely seek to enhance the input, thor- 
oughness, and instrumental rationality of agency action, but 
do not change the nature of the choice delegated. Such re- 
quirements may be valuable and arguably important in 
avoiding a due process problem, but if Congress neglects to 
make or guide the essential value choices, it has unconstitu- 
tionally delegated its fundamental power and duty. Instruct- 
ing an executive agent to “think hard and be careful” may be 
sensible, but it adds nothing of substance. 

For similar reasons, judicial review under the current stat- 
ute does not mitigate the nondelegation problem because that 
review can offer no more substantive guidance or check than 
the statute itself. In the absence of standards from Congress, 
judicial review of the substance of EPA’s choices would be 
either improper or impossible. 

Thus, Judge Silberman’s suggestion below to focus upon 
whether EPA’s “final product was unreasonable” regardless 
of “whether the agency ‘actually adhered to a disciplined de- 
cisionmaking process,’” ATA II, 195 F.3d at 15 (Silberman, 
J., dissenting) (citation omitted), simply invites courts to sub- 

9 Even if CASAC’s policy choices did have some controlling weight, that 
would merely constitute a further delegation to private actors with even 
greater problems. See Yakus, 321 U.S. at 424 (observing that one problem 
with the statute in Schechter Poultry was that the “function of formulating 
the codes [of fair competition] was delegated, not to a public official re- 
sponsible to Congress or the Executive, but to private individuals engaged 
in the industries to be regulated”). 

22 

stitute their unguided policy views for EPA’s. Even had 
Congress extended such an invitation to review for substan- 
tive “reasonableness,” that would not be an intelligible prin- 
ciple, but rather a further and improper delegation to the 
courts. 

If the requirement of a reasoned explanation is instead 
treated as a requirement of some modicum of internal consis- 
tency and some evidence of actual thought, it then collapses 
back to a procedural check and nothing more. Any choice 
among conflicting and irreconcilable values is possible as 
long as it is explained in sufficient detail. EPA’s seemingly 
open-ended charge to protect the public health from unknown 
threats based on non-causal relationships thus defies review 
and defies guidance. Indeed, even EPA’s methodologies ap- 
parently need not be consistently applied. Petitioners essen- 
tially admit the ad hoc nature of every decision EPA makes, 
arguing that because the inputs into the NAAQS process are 
so variable, 

“the most appropriate approach to establishing a 
NAAQS with an adequate margin of safety may be dif- 
ferent for each standard under review. Thus, no gener- 
alized paradigm … can substitute for the Administra- 
tor’s careful and reasoned assessment of all relevant 
health factors in reaching such a judgment.” 

Pet. Br. 29 (quoting 62 Fed. Reg. at 38,688). It is difficult to 
imagine how that ad hoc process can be subject to arbitrary 
and capricious review – it is arbitrary by definition – and it is 
impossible to imagine how a court could ever question EPA’s 
substantive judgments under this construction of § 7409. 

Legislative History Undermines a Claim to Guidance. 

Petitioners’ reliance on legislative history as providing some 
supposed guidance is surprising given that they cite very little 
of that history. Citing briefly to the D.C. Circuit’s discussion 
of legislative history in Lead Industries Association v. EPA, 
Petitioners claim that they are limited to regulating based 

23 

upon only “adverse” health effects, which must be “medically 
significant, not merely detectable.” Pet. Br. 24 (citing 647 
F.2d 1130, 1152, 1155 (CADC), cert. denied, 449 U.S. 1042 
(1980)). Of course, Petitioners promptly contradict them- 
selves on this point, claiming that § 7409’s requirement of an 
“adequate margin of safety” means NAAQS should be “pre- 
ventative or precautionary,” Pet. Br. 24, which in turn frees 
EPA from the need for “rigorous step-by-step proof of cause 
and effect,” Pet. Br. 28 (citation and internal quotation marks 
omitted). Indeed, Petitioners claim EPA is free to target 
“hazards which research has not yet identified.” Pet. Br. 28 
(citation omitted). 

10 

This very case demonstrates the lack of EPA’s claimed 
constraint, given the agency’s willingness and ability to 
regulate supposed hazards of questionable medical pedigree. 
Thus, regarding PM, EPA admits that “the relevant toxico- 
logical and controlled human studies published to date have 
not identified any accepted mechanism(s) that would explain 
how such relatively low concentrations of ambient PM might 
cause the health effects reported in the epidemiological lit- 
erature” and admits its lack of knowledge “whether or not a 
threshold concentration exists below which PM-associated 
health risks are not likely to occur.” 62 Fed. Reg. at 38,656. 
In the face of such speculation, legislative history referring to 
“adverse” effects seems to offer no guidance at all. 

The most to be gleaned from the legislative history is that 
Congress failed to confront the difficult choice it faced, and 
ultimately sent a mixed message. Thus, the House Report on 
the 1977 Amendments recognizes a no-risk plain reading of 

10 One might also note that when EPA proclaims a danger from low doses 
of a pollutant based upon extrapolation from evidence at much higher 
doses, the harm is not only of doubtful significance, it is not even “detect- 
able” at all. Yet armed with a linear no-threshold hypothesis and a charge 
to be preventive and precautionary, EPA imposes untold costs based on 
what amounts to speculation and guesswork. 

24 

the NAAQS provision, but then seems to reject such a re- 
quirement, stating: “Obviously, this no-risk philosophy ig- 
nores all economic and social consequences and is impracti- 
cal. This is particularly true in light of the legal requirement 
for mandatory attainment of the national primary standards 
within 3 years.” H.R. Rep. No. 95-294, 95 

th Cong., 1 

st Sess. 
127 (1977) (quoted in Lead Industries, 647 F.2d at 1151 n. 

41). Similarly, Senator Muskie expressed his view that “there 
is no such thing as a threshold for health effects” and conse- 
quently, “[e]ven at the national primary standard level, which 
is the health standard, there are health effects that are not 
protected against.” 123 Cong. Rec. S9423 (daily ed. June 10, 
1977) (quoted in Lead Industries, 647 F.2d at 1151 n. 41). 
Senator Muskie ultimately recognized how this view was at 
odds with the statutory language: 

I wish it were possible for the Administrator to set na- 
tional primary and secondary standards that fully im- 
plement the statutory language …. The fact is, as testi- 
mony and documents disclose, the standards do not fully 
protect in accordance with the statutory language which 
gives the Administrator authority to provide for addi- 
tional protection. He has had to make a pragmatic 
judgment in the face of the fact that he found there is no 
threshold on health effects, which makes it very difficult 
then to apply absolute health protection, and he has not 
been able to do that. 

123 Cong. Rec. S9426 (daily ed. June 10, 1977) (quoted in 
Lead Industries, 647 F.2d at 1153 n. 43). 

Having recognized and accepted the impossibility of con- 
forming to the statutory language, Congress nonetheless 
failed to offer any guidance or to amend the statute to include 
an alternate standard. Rather than provide constitutionally 
adequate guidance, the legislative history demonstrates that in 
the context of nonthreshold pollutants § 7409 constitutes 
empty posturing with which EPA could not and did not com- 
ply. Indeed, the D.C. Circuit long ago recognized that the 

25 

charge “to protect against unknown dangers” is a “veritable 
paradox calling as it does for knowledge of that which is un- 
known” and the statutory “term ‘margin of safety’ is Con- 
gress’s directive that means be found to carry out the task and 
to reconcile the paradox.” Environmental Defense Fund v. 
EPA, 598 F.2d 62, 81 (CADC 1978). But it was not until 
twenty years later that the D.C. Circuit recognized, in the de- 
cision below, that the only way to move past a paradox of this 
sort is through a naked political choice. Such paradoxical 
choices are among the most difficult in law making, but they 
necessarily belong to Congress and may not be delegated. 

B. Mere Consideration of Costs and Benefits Offers 

No Intelligible Principle. 

As noted above, supra at 17-19, Amici believe that the di- 
rect-health-only interpretation of § 7409 not only lacks an in- 
telligible principle to guide EPA’s value choices, it also in- 
vites either absurd or inevitably disingenuous results. A zero- 
risk, zero-concentration NAAQS, by effectively demanding 
the impossible, is facially absurd and, if required, would 
likely render § 7409 unconstitutional under the Fifth Amend- 
ment on both Due Process and Takings grounds. Alterna- 
tively, regardless whether EPA admits it, any nonzero stop- 
ping point for nonthreshold pollutants will inevitably be based 
on a balance of competing interests. 

Given the alternatives of absurdity or dishonesty, it makes 
far more sense to adopt an available construction of the stat- 
ute that allows the direct and open consideration of competing 
interests. EPA’s current refusal, sanctioned by the D.C. Cir- 
cuit, openly to take into account any effects other than direct 
health consequences from pollution is misguided and deeply 
troubling. Aside from ignoring or masking difficult cost and 
feasibility constraints that necessarily form part of any ra- 
tional governmental process, EPA’s blinders also ignore or 
mask competing health considerations. Thus, if an exces- 
sively stringent NAAQS diverts resources from more valu- 

26 

able efforts – even other pollution control efforts – EPA 
claims not to consider that when setting a particular standard. 
Rather than promoting health, therefore, EPA’s approach 
could actually lead to a NAAQS that caused a net loss of life. 
Such a nonsensical construction of the statute ought to be 
avoided if at all possible. In that respect, Amici agree with 
Cross-Petitioners in No. 99-1426 that a more sensible con- 
struction of § 7409 is indeed available that would allow EPA 
to consider a variety of relevant interests. 

11 

But Amici do not believe that the sensible inclusion of 
these additional considerations eliminates the nondelegation 
problem. If anything it potentially makes that problem worse. 
Expanding the range of values factoring into EPA’s final de- 
cision, without guiding the balancing of those values, simply 
renders EPA’s decision that much more “legislative” in na- 
ture. Without a hierarchy among the competing values, and 
some means of calibrating and comparing costs and benefits, 
the statute so construed would still lack an intelligible princi- 
ple to guide EPA’s substantive decisions concerning when 
costs exceeded benefits. As the many notable economists fa- 
voring cost-benefit analysis themselves recognize, “there may 
be factors other than economic benefits and costs that agen- 
cies will want to weigh in decisions, such as equity across 
generations,” cost-benefit analysis “does not emphasize fac- 
tors that are not easily quantified or monetized,” and therefore 
it will be necessary in any such analysis to “give due consid- 
eration to factors that defy quantification but are thought to be 
important.” Brief Amici Curiae of AEI-Brookings Joint 
Center for Regulatory Studies, et. al., in No. 99-1426, at 10 
(July 21, 2000). What this description illustrates is a perfectly 
sensible means of making legislative decisions, not an intelli- 

11 Amici find room for additional considerations in § 7409’s use of the 
words “requisite” and “adequate,” in that section’s incorporation of the 
criteria under § 7408, which cover more than just health, and in the re- 
quirement to consider CASAC recommendations and public comments, 
which need not be limited to or based solely upon health concerns. 

27 

gible principle for an agency without legislative authority to 
“monetize” or otherwise give “due consideration” to com- 
peting values lacking a common denominator. 

Thus, even were EPA to develop “the rough equivalent of 
a generic unit of harm that takes into account population af- 
fected, severity and probability,” as hypothesized by the D.C. 
Circuit, ATA I, 175 F.3d at 1039, the statute offers no guid- 
ance as to how much harm is acceptable or how much ex- 
pense Congress is willing to impose for each unit reduction in 
harm. While identifying, categorizing, and comparing the 
harm from air pollution all constitute sound scientific endeav- 
ors that may properly be delegated to agents, the final deci- 
sion of what to do about such harm remains a political, not a 
scientific, judgment. 

In other contexts, this Court has recognized that “a judg- 
ment about the appropriate level of expenditure for health 
care in light of the associated malpractice risk” is a judgment 
for Congress, not the Courts. Pegram v. Herdrich, -- U.S. --, 
--, 120 S. Ct. 2143, 2150 (2000). Likewise, the judgment 
concerning the appropriate level of cost to impose in light of 
the associated pollution risks is for Congress and not for an 
administrative agency. That “debatable social judgment,” 
similar to the “judgments of social value” involved in deter- 
mining “optimum treatment levels and health care expendi- 
ture,” id. at --, 120 S. Ct. at 2150, is the type of fundamental 
policy judgment that lies at the heart of the legislative power. 

C. Invalidation Is The Appropriate Remedy For 

Improper Delegation. 

Although the D.C. Circuit was correct in holding that no 
intelligible principle guided EPA’s discretion in setting 
NAAQS, the proper remedy is to declare the law unconstitu- 
tional and leave it to Congress, not to the agency, to provide 
the fundamental guidance lacking in the current statute. 
While a remand might have served certain administrative-law 
and due-process functions, it does not serve the “key function 

28 

of non-delegation doctrine, to ‘ensure[] to the extent consis- 
tent with orderly governmental administration that important 
choices of social policy are made by Congress.’” ATA I, 175 
F.3d at 1038 (quoting Benzene, 448 U.S. at 685 (Rehnquist, 
J., concurring in the judgment). 

As Judge Silberman correctly observed, it is “only this 
so-called ‘third’ purpose … that has any connection to the 
doctrine's constitutional source.” ATA II, 195 F.3d at 15 n. 2 
(Silberman, J., dissenting from denial of rehearing en banc). 
Although Judge Silberman mistakenly concluded that there 
was no improper delegation, his separate critique of the rem- 
edy was on the mark: 

[The purpose of the nondelegation doctrine] is, of 
course, to ensure that Congress makes the crucial policy 
choices that are carried into law. … It hardly serves – 
indeed, it contravenes – that purpose to demand that 
EPA in effect draft a different, narrower version of the 
Clean Air Act.[] Under that view Congress would be 
able to delegate almost limitless policymaking authority 
to an agency, so long as the agency provides and con- 
sistently applies an “intelligible principle.”[] 

Id. at 15 (footnotes omitted). The nondelegation doctrine re- 
quires that Congress actually make the hard choices and pro- 
vide the substantive guidance for subsequent agency action. 
Delegating the task of providing guidance to the agency itself 
does not satisfy nondelegation requirements. If there is to be 
a remand in this case, it must be a remand to Congress to pro- 
vide the guidance currently lacking. 

CONCLUSION 

For the foregoing reasons, the decision of United States 
Court of Appeals for the D.C. Circuit should be affirmed with 
instructions to invalidate the PM and ozone NAAQS. 

29 

Respectfully Submitted, 

ERIK S. JAFFE 

Counsel of record 

ERIK S. JAFFE, P.C. 
5101 34 

th Street, N.W. 
Washington, D.C. 20008 
(202) 237-8165 

Counsel for Amici Curiae 

Dated: September 11, 2000.