Program in Public Law

Whitman v. American Trucking Associations

From the web site for Environmental Regulation: Law, Science and Policy, by Percival, Miller, Schroeder and Leape
Website: http://www.law.umaryland.edu/environment/casebook/
(has now been removed from the site for inclusion in 2002 hard copy Supplement to the text).

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Justice SCALIA delivered the opinion of the Court.

   These cases present the following questions: (1) Whether §109(b)(1) of the Clean Air Act (CAA) delegates legislative power to the Administrator of the Environmental Protection Agency (EPA). (2) Whether the Administrator may consider the costs of implementation in setting national ambient air quality standards (NAAQS) under §109(b)(1). (3) Whether the Court of Appeals had jurisdiction to review the EPA's interpretation of Part D of Title I of the CAA, 42 U.S.C. § 7501--7515, with respect to implementing the revised ozone NAAQS. (4) If so, whether the EPA's interpretation of that part was permissible. . . .

   In Lead Industries Assn., Inc. v. EPA, supra, at 1148, the District of Columbia Circuit held that "economic considerations [may] play no part in the promulgation of ambient air quality standards under Section 109" of the CAA. In the present cases, the court adhered to that holding, 175 F.3d, at 1040--1041, as it had done on many other occasions. See, e.g., American Lung Assn. v. EPA, 134 F.3d 388, 389 (1998); NRDC v. Administrator, EPA, 902 F.2d 962, 973 (1990), vacated in part on other grounds, NRDC v. EPA, 921 F.2d 326 (CADC 1991); American Petroleum Institute v. Costle, 665 F.2d 1176, 1185 (1981). Respondents argue that these decisions are incorrect. We disagree; and since the first step in assessing whether a statute delegates legislative power is to determine what authority the statute confers, we address that issue of interpretation first and reach respondents' constitutional arguments in Part III, infra.

   Section 109(b)(1) instructs the EPA to set primary ambient air quality standards "the attainment and maintenance of which … are requisite to protect the public health" with "an adequate margin of safety." 42 U.S.C. § 7409(b)(1). Were it not for the hundreds of pages of briefing respondents have submitted on the issue, one would have thought it fairly clear that this text does not permit the EPA to consider costs in setting the standards. The language, as one scholar has noted, "is absolute." D. Currie, Air Pollution: Federal Law and Analysis 4--15 (1981). The EPA, "based on" the information about health effects contained in the technical "criteria" documents compiled under §108(a)(2), 42 U.S.C. § 7408(a)(2), is to identify the maximum airborne concentration of a pollutant that the public health can tolerate, decrease the concentration to provide an "adequate" margin of safety, and set the standard at that level. Nowhere are the costs of achieving such a standard made part of that initial calculation.

   Against this most natural of readings, respondents make a lengthy, spirited, but ultimately unsuccessful attack. They begin with the object of §109(b)(1)'s focus, the "public health." When the term first appeared in federal clean air legislation-in the Act of July 14, 1955 (1955 Act), 69 Stat. 322, which expressed "recognition of the dangers to the public health" from air pollution-its ordinary meaning was "[t]he health of the community." Webster's New International Dictionary 2005 (2d ed. 1950). Respondents argue, however, that §109(b)(1), as added by the Clean Air Amendments of 1970 (1970 Act), 84 Stat. 1676, meant to use the term's secondary meaning: "[t]he ways and means of conserving the health of the members of a community, as by preventive medicine, organized care of the sick, etc." Ibid. Words that can have more than one meaning are given content, however, by their surroundings, FDA v. Brown & Williamson Tobacco Corp., 529 U.S. 120, 132--133 (2000); Jones v. United States, 527 U.S. 373, 389 (1999), and in the context of §109(b)(1) this second definition makes no sense. Congress could not have meant to instruct the Administrator to set NAAQS at a level "requisite to protect" "the art and science dealing with the protection and improvement of community health." Webster's Third New International Dictionary 1836 (1981). We therefore revert to the primary definition of the term: the health of the public.

   Even so, respondents argue, many more factors than air pollution affect public health. In particular, the economic cost of implementing a very stringent standard might produce health losses sufficient to offset the health gains achieved in cleaning the air-for example, by closing down whole industries and thereby impoverishing the workers and consumers dependent upon those industries. That is unquestionably true, and Congress was unquestionably aware of it. Thus, Congress had commissioned in the Air Quality Act of 1967 (1967 Act) "a detailed estimate of the cost of carrying out the provisions of this Act; a comprehensive study of the cost of program implementation by affected units of government; and a comprehensive study of the economic impact of air quality standards on the Nation's industries, communities, and other contributing sources of pollution." §2, 81 Stat. 505. The 1970 Congress, armed with the results of this study, see The Cost of Clean Air, S. Doc. No. 91--40 (1969) (publishing the results of the study), not only anticipated that compliance costs could injure the public health, but provided for that precise exigency. Section 110(f)(1) of the CAA permitted the Administrator to waive the compliance deadline for stationary sources if, inter alia, sufficient control measures were simply unavailable and "the continued operation of such sources is essential … to the public health or welfare." 84 Stat. 1683 (emphasis added). Other provisions explicitly permitted or required economic costs to be taken into account in implementing the air quality standards. Section 111(b)(1)(B), for example, commanded the Administrator to set "standards of performance" for certain new sources of emissions that as specified in §111(a)(1) were to "reflec[t] the degree of emission limitation achievable through the application of the best system of emission reduction which (taking into account the cost of achieving such reduction) the Administrator determines has been adequately demonstrated." Section 202(a)(2) prescribed that emissions standards for automobiles could take effect only "after such period as the Administrator finds necessary to permit the development and application of the requisite technology, giving appropriate consideration to the cost of compliance within such period." 84 Stat. 1690. See also §202(b)(5)(C) (similar limitation for interim standards); §211(c)(2) (similar limitation for fuel additives); §231(b) (similar limitation for implementation of aircraft emission standards). Subsequent amendments to the CAA have added many more provisions directing, in explicit language, that the Administrator consider costs in performing various duties. See, e.g.,42 U.S.C. § 7545(k)(1) (reformulate gasoline to "require the greatest reduction in emissions … taking into consideration the cost of achieving such emissions reductions"); §7547(a)(3) (emission reduction for nonroad vehicles to be set "giving appropriate consideration to the cost" of the standards). We have therefore refused to find implicit in ambiguous sections of the CAA an authorization to consider costs that has elsewhere, and so often, been expressly granted. See Union Elec. Co. v. EPA,427 U.S. 246, 257, and n. 5 (1976). Cf. General Motors Corp. v. United States,496 U.S. 530, 538, 541 (1990) (refusing to infer in certain provisions of the CAA deadlines and enforcement limitations that had been expressly imposed elsewhere).

   Accordingly, to prevail in their present challenge, respondents must show a textual commitment of authority to the EPA to consider costs in setting NAAQS under §109(b)(1). And because §109(b)(1) and the NAAQS for which it provides are the engine that drives nearly all of Title I of the CAA, 42 U.S.C. § 7401--7515, that textual commitment must be a clear one. Congress, we have held, does not alter the fundamental details of a regulatory scheme in vague terms or ancillary provisions-it does not, one might say, hide elephants in mouseholes. See MCI Telecommunications Corp. v. American Telephone & Telegraph Co.,512 U.S. 218, 231 (1994); FDA v. Brown & Williamson Tobacco Corp., supra, at 159--160. Respondents' textual arguments ultimately founder upon this principle.

   Their first claim is that §109(b)(1)'s terms "adequate margin" and "requisite" leave room to pad health effects with cost concerns. Just as we found it "highly unlikely that Congress would leave the determination of whether an industry will be entirely, or even substantially, rate-regulated to agency discretion-and even more unlikely that it would achieve that through such a subtle device as permission to 'modify' rate-filing requirements," MCI Telecommunications Corp. v. American Telephone & Telegraph Co., supra, at 231, so also we find it implausible that Congress would give to the EPA through these modest words the power to determine whether implementation costs should moderate national air quality standards. Accord Christensen v. Harris County, 529 U.S. 576, 590, n. (2000) (Scalia, J., concurring in part and concurring in judgment) ("The implausibility of Congress's leaving a highly significant issue unaddressed (and thus 'delegating' its resolution to the administering agency) is assuredly one of the factors to be considered in determining whether there is ambiguity" (emphasis deleted)).

   The same defect inheres in respondents' next two arguments: that while the Administrator's judgment about what is requisite to protect the public health must be "based on [the] criteria" documents developed under §108(a)(2), see §109(b)(1), it need not be based solely on those criteria; and that those criteria themselves, while they must include "effects on public health or welfare which may be expected from the presence of such pollutant in the ambient air," are not necessarily limited to those effects. Even if we were to concede those premises, we still would not conclude that one of the unenumerated factors that the agency can consider in developing and applying the criteria is cost of implementation. That factor is both so indirectly related to public health and so full of potential for canceling the conclusions drawn from direct health effects that it would surely have been expressly mentioned in §§108 and 109 had Congress meant it to be considered. Yet while those provisions describe in detail how the health effects of pollutants in the ambient air are to be calculated and given effect, see §108(a)(2), they say not a word about costs.

   Respondents point, finally, to a number of provisions in the CAA that do require attainment cost data to be generated. Section 108(b)(1), for example, instructs the Administrator to "issue to the States," simultaneously with the criteria documents, "information on air pollution control techniques, which information shall include data relating to the cost of installation and operation." 42 U.S.C. § 7408(b)(l). And §109(d)(2)(C)(iv) requires the Clean Air Scientific Advisory Committee to "advise the Administrator of any adverse public health, welfare, social, economic, or energy effects which may result from various strategies for attainment and maintenance" of NAAQS. 42 U.S.C. § 7409(d)(2)(C)(iv). Respondents argue that these provisions make no sense unless costs are to be considered in setting the NAAQS. That is not so. These provisions enable the Administrator to assist the States in carrying out their statutory role as primary implementers of the NAAQS. It is to the States that the Act assigns initial and primary responsibility for deciding what emissions reductions will be required from which sources. See 42 U.S.C. § 7407(a), 7410 (giving States the duty of developing implementation plans). It would be impossible to perform that task intelligently without considering which abatement technologies are most efficient, and most economically feasible-which is why we have said that "the most important forum for consideration of claims of economic and technological infeasibility is before the state agency formulating the implementation plan," Union Elec. Co. v. EPA, 427 U.S., at 266. Thus, federal clean air legislation has, from the very beginning, directed federal agencies to develop and transmit implementation data, including cost data, to the States. See 1955 Act, §2(b), 69 Stat. 322; Clean Air Act of 1963, amending §§3(a), (b) of the CAA, 77 Stat. 394; 1967 Act, §§103(a)--(d), 104, 107(c), 81 Stat. 486--488. That Congress chose to carry forward this research program to assist States in choosing the means through which they would implement the standards is perfectly sensible, and has no bearing upon whether cost considerations are to be taken into account in formulating the standards. ⁽¹⁾

   It should be clear from what we have said that the canon requiring texts to be so construed as to avoid serious constitutional problems has no application here. No matter how severe the constitutional doubt, courts may choose only between reasonably available interpretations of a text. See, e.g., Miller v. French,530 U.S. 327, 341 (2000); Pennsylvania Dept. of Corrections v. Yeskey, 524 U.S. 206, 212 (1998). The text of §109(b), interpreted in its statutory and historical context and with appreciation for its importance to the CAA as a whole, unambiguously bars cost considerations from the NAAQS-setting process, and thus ends the matter for us as well as the EPA. ⁽²⁾ We therefore affirm the judgment of the Court of Appeals on this point.

   Section 109(b)(1) of the CAA instructs the EPA to set "ambient air quality standards the attainment and maintenance of which in the judgment of the Administrator, based on [the] criteria [documents of §108] and allowing an adequate margin of safety, are requisite to protect the public health." 42 U.S.C. § 7409(b)(1). The Court of Appeals held that this section as interpreted by the Administrator did not provide an "intelligible principle" to guide the EPA's exercise of authority in setting NAAQS. "[The] EPA," it said, "lack[ed] any determinate criteria for drawing lines. It has failed to state intelligibly how much is too much." 175 F.3d, at 1034. The court hence found that the EPA's interpretation (but not the statute itself) violated the nondelegation doctrine. Id., at 1038. We disagree.

   In a delegation challenge, the constitutional question is whether the statute has delegated legislative power to the agency. Article I, §1, of the Constitution vests "[a]ll legislative Powers herein granted … in a Congress of the United States." This text permits no delegation of those powers, Loving v. United States,517 U.S. 748, 771 (1996); see id., at 776--777 (Scalia, J., concurring in part and concurring in judgment), and so we repeatedly have said that when Congress confers decisionmaking authority upon agencies Congress must "lay down by legislative act an intelligible principle to which the person or body authorized to [act] is directed to conform." J. W. Hampton, Jr., & Co. v. United States,276 U.S. 394, 409 (1928). We have never suggested that an agency can cure an unlawful delegation of legislative power by adopting in its discretion a limiting construction of the statute. Both Fahey v. Mallonee, 332 U.S. 245, 252--253 (1947), and Lichter v. United States,334 U.S. 742, 783 (1948), mention agency regulations in the course of their nondelegation discussions, but Lichter did so because a subsequent Congress had incorporated the regulations into a revised version of the statute, ibid., and Fahey because the customary practices in the area, implicitly incorporated into the statute, were reflected in the regulations. 332 U.S., at 250. The idea that an agency can cure an unconstitutionally standardless delegation of power by declining to exercise some of that power seems to us internally contradictory. The very choice of which portion of the power to exercise-that is to say, the prescription of the standard that Congress had omitted-would itself be an exercise of the forbidden legislative authority. Whether the statute delegates legislative power is a question for the courts, and an agency's voluntary self-denial has no bearing upon the answer.

   We agree with the Solicitor General that the text of §109(b)(1) of the CAA at a minimum requires that "[f]or a discrete set of pollutants and based on published air quality criteria that reflect the latest scientific knowledge, [the] EPA must establish uniform national standards at a level that is requisite to protect public health from the adverse effects of the pollutant in the ambient air." Tr. of Oral Arg. in No. 99--1257, p. 5. Requisite, in turn, "mean[s] sufficient, but not more than necessary." Id., at 7. These limits on the EPA's discretion are strikingly similar to the ones we approved in Touby v. United States,500 U.S. 160 (1991), which permitted the Attorney General to designate a drug as a controlled substance for purposes of criminal drug enforcement if doing so was " 'necessary to avoid an imminent hazard to the public safety.' " Id., at 163. They also resemble the Occupational Safety and Health Act provision requiring the agency to " 'set the standard which most adequately assures, to the extent feasible, on the basis of the best available evidence, that no employee will suffer any impairment of health' "-which the Court upheld in Industrial Union Dept., AFL--CIO v. American Petroleum Institute,448 U.S. 607, 646 (1980), and which even then-Justice Rehnquist, who alone in that case thought the statute violated the nondelegation doctrine, see id., at 671 (opinion concurring in judgment), would have upheld if, like the statute here, it did not permit economic costs to be considered. See American Textile Mfrs. Institute, Inc. v. Donovan,452 U.S. 490, 545 (1981) (Rehnquist, J., dissenting).

   The scope of discretion §109(b)(1) allows is in fact well within the outer limits of our nondelegation precedents. In the history of the Court we have found the requisite "intelligible principle" lacking in only two statutes, one of which provided literally no guidance for the exercise of discretion, and the other of which conferred authority to regulate the entire economy on the basis of no more precise a standard than stimulating the economy by assuring "fair competition." See Panama Refining Co. v. Ryan,293 U.S. 388 (1935); A. L. A. Schechter Poultry Corp. v. United States,295 U.S. 495 (1935). We have, on the other hand, upheld the validity of §11(b)(2) of the Public Utility Holding Company Act of 1935, 49 Stat. 821, which gave the Securities and Exchange Commission authority to modify the structure of holding company systems so as to ensure that they are not "unduly or unnecessarily complicate[d]" and do not "unfairly or inequitably distribute voting power among security holders." American Power & Light Co. v. SEC,329 U.S. 90, 104 (1946). We have approved the wartime conferral of agency power to fix the prices of commodities at a level that " 'will be generally fair and equitable and will effectuate the [in some respects conflicting] purposes of th[e] Act.' " Yakus v. United States,321 U.S. 414, 420, 423--426 (1944). And we have found an "intelligible principle" in various statutes authorizing regulation in the "public interest." See, e.g., National Broadcasting Co. v. United States,319 U.S. 190, 225--226 (1943) (FCC's power to regulate airwaves); New York Central Securities Corp. v. United States,287 U.S. 12, 24--25 (1932) (ICC's power to approve railroad consolidations). In short, we have "almost never felt qualified to second-guess Congress regarding the permissible degree of policy judgment that can be left to those executing or applying the law." Mistretta v. United States,488 U.S. 361, 416 (1989) (Scalia, J., dissenting); see id., at 373 (majority opinion).

   It is true enough that the degree of agency discretion that is acceptable varies according to the scope of the power congressionally conferred. See Loving v. United States, supra, at 772--773; United States v. Mazurie,419 U.S. 544, 556--557 (1975). While Congress need not provide any direction to the EPA regarding the manner in which it is to define "country elevators," which are to be exempt from new-stationary-source regulations governing grain elevators, see §7411(i), it must provide substantial guidance on setting air standards that affect the entire national economy. But even in sweeping regulatory schemes we have never demanded, as the Court of Appeals did here, that statutes provide a "determinate criterion" for saying "how much [of the regulated harm] is too much." 175 F.3d, at 1034. In Touby, for example, we did not require the statute to decree how "imminent" was too imminent, or how "necessary" was necessary enough, or even-most relevant here-how "hazardous" was too hazardous. 500 U.S., at 165--167. Similarly, the statute at issue in Lichter authorized agencies to recoup "excess profits" paid under wartime Government contracts, yet we did not insist that Congress specify how much profit was too much. 334 U.S., at 783--786. It is therefore not conclusive for delegation purposes that, as respondents argue, ozone and particulate matter are "nonthreshold" pollutants that inflict a continuum of adverse health effects at any airborne concentration greater than zero, and hence require the EPA to make judgments of degree. "[A] certain degree of discretion, and thus of lawmaking, inheres in most executive or judicial action." Mistretta v. United States, supra, at 417 (Scalia, J., dissenting) (emphasis deleted); see 488 U.S., at 378--379 (majority opinion). Section 109(b)(1) of the CAA, which to repeat we interpret as requiring the EPA to set air quality standards at the level that is "requisite"-that is, not lower or higher than is necessary-to protect the public health with an adequate margin of safety, fits comfortably within the scope of discretion permitted by our precedent.

   We therefore reverse the judgment of the Court of Appeals remanding for reinterpretation that would avoid a supposed delegation of legislative power. It will remain for the Court of Appeals-on the remand that we direct for other reasons-to dispose of any other preserved challenge to the NAAQS under the judicial-review provisions contained in 42 U.S.C. § 7607(d)(9).

[The Court went on to find that EPA had misinterpreted the impact of provisions added to the Act in the 1990 Amendments (Subpart 2 of Part D of Title I) specifying implementation schedules for ozone nonattainment areas. The Court rejected EPA's claim that this issue was not properly before it because it found that EPA's "interim implementation policy" was sufficiently final and ripe for judicial review. Recognizing that some parts Subpart 2 may be "ill-fitted" for implementation of a revised ozone standard, the Court expressed doubt "that Congress clearly intended Subpart 2 to be the exclusive, permanent means of enforcing a revised ozone standard in nonattainment areas." In this respect the Court departed from the D.C. Circuit's interpretation of the impact of Subpart 2. However, despite acknowledging the statute's ambiguity on this issue, the Court refused to defer to EPA's interpretation that Subpart 2 was entirely inapplicable to a revised ozone NAAQS because it deemed it unreasonable to think that Congress would let EPA render Subpart 2 nugatory simply by revising the ozone NAAQS. Thus the Court remanded this aspect of the case back to EPA "to develop a reasonable interpretation of the nonattainment implementation provisions" as applied to a revised ozone NAAQS.]

1. Respondents scarcely mention in their arguments the secondary NAAQS required by §109(b)(2), 42 U.S.C. § 7409(b)(2). For many of the same reasons described in the body of the opinion, as well as the text of §109(b)(2), which instructs the EPA to set the standards at a level "requisite to protect the public welfare from any known or anticipated adverse effects associated with the presence of such air pollutant in the ambient air" (emphasis added), we conclude that the EPA may not consider implementation costs in setting the secondary NAAQS.

2. Respondents' speculation that the EPA is secretly considering the costs of attainment without telling anyone is irrelevant to our interpretive inquiry. If such an allegation could be proved, it would be grounds for vacating the NAAQS, because the Administrator had not followed the law. See, e.g., Chevron U.S. A. Inc. v. Natural Resources Defense Council, Inc.,467 U.S. 837, 842--843 (1984); Atlantic Mut. Ins. Co. v. Commissioner, 523 U.S. 382, 387 (1998). It would not, however, be grounds for this Court's changing the law.