Tortured Logic in Air Ruling

For 60 years, the U.S. Supreme Court has granted Congress broad authority to delegate rule-making power to the executive branch of government. It was the right idea, recognizing the need for expertise in financial, technical and scientific safety regulation. But a three-justice panel of the U.S. Circuit Court of Appeals has now challenged the whole concept in nullifying the Environmental Protection Agency’s latest set of clean air standards.

The 2-1 ruling in the District of Columbia caught environmental groups, the EPA itself and even legal scholars by surprise. The Clinton administration should appeal this convoluted decision to the full Court of Appeals and, if necessary, the U.S. Supreme Court. If its twisted logic was widely applied, the decision could turn federal rule-making procedures into chaos at agencies including the Food and Drug Administration and the Federal Communications Commission. The decision is so confusing and self-contradictory that a higher court should have no trouble reversing it.

The court ruled on a challenge of EPA regulations that were adopted in 1997. The agency, on the basis of new health research, had acted to further restrict the emission of tiny particulates into the air and cut allowable levels of ozone. The EPA sets standards and then generally leaves it to state and local governments to decide how they are to be achieved. In this case, the new standards were to be implemented over the next 15 years.

The court, at some points in its decision, appeared to accuse Congress of delegating too much authority to the EPA for interpreting the Clean Air Act. At other points, the judges found the EPA had exceeded its authority by setting standards that were vague and arbitrary. EPA officials, supported by health experts, insisted that the rules were based on exhaustive scientific studies of the health hazards of the pollutants.

The appeals panel relied on the “non-delegation doctrine,” which was invoked by the Supreme Court twice in the 1930s to strike down federal laws on the ground that they delegated too much power. In those cases, however, the power was delegated not to another branch of government but to private industry groups enlisted by Congress to help fight the Great Depression. An attempt to revive the doctrine in 1989 was soundly rejected by all nine members of the Supreme Court.

The full circuit court, or the U.S. Supreme Court, should move quickly to put this dusty old concept back on the shelf for good.