UNITED STATES COURT OF APPEALS
FOR THE DC CIRCUIT
AMER TRK ASSN INC
v.
EPA
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No. 97-1440b
October 29, 191999
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Before: Edwards, Chief Judge, Wald, Silberman, Williams, Ginsburg, Sentelle, Henderson, Randolph, Rogers, Tatel, and Garland, Circuit Judges.O R D E R
Respondent EPA's Suggestion for Rehearing En Banc and the responses thereto have been circulated to the full court. The taking of a vote was requested. Thereafter, a majority of the judges of the court in regular active service did not vote in favor of the suggestion. Upon consideration of the foregoing, it is
ORDERED that the suggestion be denied.
Per Curiam
FOR THE COURT:
Mark J. Langer, Clerk
Circuit Judges Wald and Henderson did not participate in this matter.
Chief Judge Edwards and Circuit Judges Silberman, Rogers, Tatel, and Garland would grant the suggestion.
A statement of Circuit Judge Silberman dissenting from the denial of rehearing en banc is attached.
A statement of Circuit Judge Tatel dissenting from the denial of rehearing en banc, in which Chief Judge Edwards and Circuit Judge Garland join, is attached.
Silberman, Circuit Judge, dissenting from the denial of rehearing en banc: The panel's reliance on the nondelegation doctrine to reject EPA's interpretation of section 109 of the Clean Air Act is rather ingenious, but I regret that it seems to me to be fundamentally unsound. I do not think that doctrine can be employed to force an agency to narrow a broad legislative delegation from Congress.
The doctrine, as Judge Tatel in dissent pointed out, Ameri- can Trucking Ass'n v. EPA, 175 F.3d 1027, 1057-58 (D.C. Cir. 1999) ("ATA") (Tatel, J., dissenting in part), is at this stage of constitutional "evolution" not in particularly robust health. Justice Rehnquist heroically attempted to inject vi- tality into the doctrine in his powerful concurrence in the Benzene case, see Industrial Union Dep't, AFL-CIO v. American Petroleum Inst., 448 U.S. 607, 671 (1980). But, sad to say, his view is not shared by a majority of the Court which has acknowledged only a theoretical limitation on the scope of congressional delegations to the executive branch. See Mistretta v. United States, 488 U.S. 361, 416 (1989) (Scalia, J., dissenting) ("What legislated 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?").
To be sure, the plurality in the Benzene case ostensibly relied on the doctrine to support its interpretation of the Occupational Safety and Health Act. See Benzene, 448 U.S. at 645-46. But a careful reading of the plurality opinion (not, of course, an opinion of the Court, which would bind us) reveals that the doctrine was only a makeweight, tossed into the analysis, in light of Justice Rehnquist's concurrence, to help justify the result. The plurality, disturbed at the seem- ingly draconian impact of the Secretary of Labor's standard as applied to several industries, analytically conflated the scope of the Secretary's discretion--the legitimate concern of the nondelegation doctrine--with the regulatory conse- quences of his interpretation of the statute. Id. at 645. The latter concern is not really germane to the doctrine; indeed, the Secretary was actually claiming he had less discretion than the plurality thought he had. Accordingly, the Benzene plurality opinion gives only lip service to the nondelegation
doctrine; the boundaries limiting the scope of congressional delegation to the executive branch remain only dimly perceiv- able. I agree with Judge Tatel that the terminology of this section of the Clean Air Act does not come so close to those boundaries to raise a serious constitutional problem.
If it did, and we were faced with two conflicting interpreta- tions of the statute--both plausible--I have no doubt that a constitutionally dubious agency interpretation could be reject- ed even in a post-Chevron era. The majority questions that proposition-and confuses the issue--by stating that "the ap- proach of the Benzene case ... has given way to the ap- proach of Chevron." Slip Op. on Reh'g at 4. The Supreme Court's opinion in Rust v. Sullivan, 500 U.S. 173, 191 (1991), is to the contrary. See also infra at 1 (Tatel, J., dissenting from denial of rehearing en banc) (citing Mistretta, 488 U.S. at 373 n.7). In other words, the constitutional avoidance canon trumps Chevron deference. But that principle is not relevant to this case. Even assuming the statute was proble- matic, the panel was not faced with two competing construc- tions, one of which might be thought to avoid constitutional difficulty. Indeed, the panel concluded that there are no intelligible principles "apparent from the statute" that brought EPA's discretion within constitutionally acceptable limits. ATA, 175 F.3d at 1034. If the panel believed that was so, it should have held the statute unconstitutional. Instead the panel, purporting to rely on Chevron, remanded to EPA directing that agency to come up with an artificially narrow interpretation with various suggestions offered by the panel to accomplish that end.1 Id. at 1038-40. By so doing, I believe the panel undermines the purpose of the nondelega- tion doctrine.
That purpose 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. See U.S. Const. art. I, s 1 ("All legislative Powers herein granted
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1 Like the plurality opinion in Benzene, these suggestions seem more directed to encouraging wiser policy choices than interpreting the statute at issue.
shall be vested in a Congress of the United States."). It hardly serves--indeed, it contravenes--that purpose to de- mand that EPA in effect draft a different, narrower version of the Clean Air Act.2 Under that view Congress would be able to delegate almost limitless policymaking authority to an agency, so long as the agency provides and consistently applies an "intelligible principle."3
That is not to say that EPA is totally free to exercise its authority at any point on the discretionary continuum that Congress delegated to it in the Clean Air Act. The Adminis- trative Procedure Act's arbitrary and capricious standard also limits the agency's actions. As we have observed, the broad- er the substantive statutory delegation the more likely that the agency's policy choices will be confined by the APA, rather than the substantive statute. See National Ass'n of Regulatory Comm'rs v. ICC, 41 F.3d 721, 727 (D.C. Cir. 1994) ("Whether an agency action is to be judged as reasonable, in accordance with the APA's general arbitrary and capricious standard, or whether it is to be examined as a permissible interpretation of the statute vel non depends, at least theoret- ically, on the scope of the specific congressional delegation implicated."). In that regard, I am quite uncertain whether EPA's regulatory choice meets that test. Judge Tatel's emphasis on the agency's extensive procedures does not
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2 The panel acknowledges this purpose but, relying on an old district court opinion as primary support, claims that its approach preserves two other rationales of the doctrine, limiting the ability of agencies to exercise delegated authority arbitrarily and providing meaningful standards for judicial review. See ATA, 175 F.3d at 1038 (citing Amalgamated Meat Cutters v. Connally, 337 F. Supp. 737, 758-59 (D.D.C. 1971). But these "purposes" are obviously derivative of the doctrine's primary function of ensuring that Con- gress makes key policy decisions. It is, after all, only this so-called "third" purpose, see id., that has any connection to the doctrine's constitutional source.
3 It is true that we used a similar approach in Industrial Union, UAW v. OSHA ("Lockout-Tagout I"), 938 F.2d 1310 (D.C. Cir. 1991). Although one could distinguish that case, I think it rests on a similarly flawed analysis of the doctrine.
appear to me to answer the question. It would not matter whether the agency "actually adhered to a disciplined deci- sionmaking process," ATA, 175 F.3d at 1059, if its final product was unreasonable. If we were to rehear the case, I would focus on that issue.
Doctrine aside, then, what is the practical difference be- tween my approach and the panel's? The answer, I think, is that the panel engages--and by retaining jurisdiction prom- ises to continue to engage, see id., 175 F.3d at 1057--in a more searching review than the arbitrary and capricious standard would permit. By treating this case as a statutory interpretation question laden with constitutional implications the panel implicitly asserts a greater role for a reviewing court than is justified.
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I respectfully dissent from our denial of rehearing en banc.
Tatel, Circuit Judge, with whom Edwards, Chief Judge, and Garland, Circuit Judge, join, dissenting from the denial of rehearing en banc:
In explaining why they remain convinced that the Clean Air Act contains an unconstitutional delegation of legislative power, my colleagues merely repeat that EPA has failed to articulate a sufficiently limiting principle. See Slip Op. on Reh'g at 1-3. They then launch into a discussion of the proper remedy once a court encounters a problematic legisla- tive delegation and conclude that "the approach of the Ben- zene case ... has given way to the approach of Chevron." Slip Op. on Reh'g at 4. But see supra at 2-3 (Silberman, J., dissenting from the denial of rehearing en banc); Mistretta v. United States, 488 U.S. 361, 373 n.7 (1989) ("In recent years, our application of the nondelegation doctrine principally has been limited to the interpretation of statutory texts, and more particularly, to giving narrow constructions to statutory dele- gations that might otherwise be thought to be unconstitution- al. See, e.g., [the Benzene case.]").
The issues discussed by my colleagues have no relevance to the constitutional question we face. As I pointed out in my dissent, the Clean Air Act's requirement that EPA set air quality standards "requisite to protect the public health" with "an adequate margin of safety" based on criteria that "accu- rately reflect the latest scientific knowledge" is far more specific than the sweeping statutory delegations consistently upheld by the Supreme Court for more than sixty years. 42 U.S.C. Sec. 7409(b)(1), s 7408(a)(2). See, e.g., National Broad- casting Co. v. United States, 319 U.S. 190, 225-26 (1943) (upholding delegation to the FCC to regulate broadcast li- censing in the "public interest"); American Trucking Ass'n, Inc. v. EPA, 175 F.3d 1027, 1057-58 (D.C. Cir. 1999) (Tatel, J., dissenting in part) (collecting cases). In language particu- larly relevant to the highly technical and scientific process of setting national ambient air quality standards, the Supreme Court in Mistretta said this about the nondelegation doctrine: "[O]ur jurisprudence has been driven by a practical under- standing that in our increasingly complex society, replete with ever changing and more technical problems, Congress simply cannot do its job absent an ability to delegate power under
broad general directives." 488 U.S. at 372. Such extensive and unambiguous Supreme Court precedent is more than enough to sustain the Clean Air Act's delegation of authority to the EPA. For purposes of constitutional analysis, we thus have no need to require that EPA state "a far more determi- nate basis for decision" beyond the intelligible principle Con- gress provided in the Clean Air Act. ATA, 175 F.3d at 1037. Nor have we any reason to consider what remedies might be available were we faced with a statute that failed to meet constitutional standards. Unless petitioners can persuade the Supreme Court to return to the days of Schechter Poultry, this "inferior" court has no authority to demand anything more from either EPA or Congress.
Neither American Lung Ass'n v. EPA, 134 F.3d 388 (D.C. Cir. 1998), nor the Benzene case, both heavily relied upon by petitioners in their opposition to the suggestion for rehearing en banc, supports the panel's opinion. No one in American Lung doubted the constitutionality of section 109's directive that EPA establish NAAQS "requisite to protect the public health." Applying the familiar arbitrary and capricious stan- dard, we held only that the Agency, in setting the sulfur dioxide NAAQS, had failed adequately to explain its applica- tion of section 109. See American Lung, 134 F.3d at 392. The Benzene plurality stated nothing more than that section 3(8) of the OSHA statute implicitly requires the Agency to make a threshold finding that a substance to be regulated causes "significant risks of harm." 448 U.S. at 641. In support of this inference, the plurality pointed to the statute's structure, context, and legislative history, see id. at 642-45, adding that a broader reading "might" amount to an unconsti- tutional delegation, id. at 646. The conclusion that Congress may constitutionally delegate authority to OSHA to regulate "significant" risks of harm hardly supports the panel's hold- ing that Congress may not constitutionally delegate authority to EPA to issue NAAQS "requisite" to protect the public health--a standard more restrictive than the one the Su- preme Court derived and approved in the Benzene case.
The panel's nondelegation holding plainly "involves a ques- tion of exceptional importance" warranting en banc review.
Fed. R. App. P. 35(a). Not only did the panel depart from a half century of Supreme Court separation-of-powers jurispru- dence, but in doing so, it stripped the Environmental Protec- tion Agency of much of its ability to implement the Clean Air Act, this nation's primary means of protecting the safety of the air breathed by hundreds of millions of people. See H.R. Rep. No. 101-490, pt. 1, at 144-45 (1990).
United States Court of Appeals
FOR THE DISTRICT OF COLUMBIA CIRCUIT
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Filed October 29, 1999
No. 97-1440
American Trucking Associations, Inc., et al., Petitioners
v.
United States Environmental Protection Agency, Respondent
Commonwealth of Massachusetts, et al., Intervenors
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Consolidated with 97-1546, 97-1548, 97-1551, 97-1552, 97-1553, 97-1555, 97-1559, 97-1561, 97-1562, 97-1565, 97-1567, 97-1571, 97-1573, 97-1574, 97-1576, 97-1578, 97-1579, 97-1582, 97-1585, 97-1586, 97-1587, 97-1588, 97-1592, 97-1594, 97-1596, 97-1597, 97-1598
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No. 97-1441
American Trucking Associations, Inc., et al., Petitioners
v.
Environmental Protection Agency, Respondent
Commonwealth of Massachusetts, et al., Intervenors _______
Consolidated with 97-1502, 97-1505, 97-1508, 97-1509, 97-1510, 97-1512, 97-1513, 97-1514, 97-1518, 97-1519, 97-1526, 97-1531, 97-1539, 97-1566, 97-1568, 97-1570, 97-1572, 97-1575, 97-1584, 97-1589, 97-1591, 97-1595, 97-1619
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BEFORE: Edwards, Chief Judge; Wald, Silberman, Williams, Ginsburg, Sentelle, Henderson, Randolph, Rogers, Tatel and Garland, Circuit Judges.
O R D E R
Upon consideration of the petitions for rehearing en banc of intervenors-respondents New Jersey and Massachusetts in Nos. 97-1440 and 97-1441, Citizens for Balanced Transporta- tion, et al. in No. 97-1440 and the American Lung Association in Nos. 97-1440 and 97-1441, and the absence of a request by any member of the court for a vote, it is
ORDERED that the petitions be denied.
Per Curiam
FOR THE COURT:
Mark J. Langer, Clerk
Circuit Judges Wald and Henderson did not participate in this matter.
CASE STATISTICSCASES: 500 U.S. 173; 488 U.S. 361; 448 U.S. 607; 319 U.S. 190; 41 F.3d 721; 175 F.3d 1027; 134 F.3d 388; 938 F.2d 1310; 337 F. Supp. 737;
STATUTES: 42 U.S.C. Sec. 7409;
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