News from the Circuits

It is not often that a court of appeals decision on a matter of administrative law merits an editorial in the New York Times, but American Trucking Ass=ns, Inc. v. U.S.E.P.A., C F.3d ---- (D.C. Cir. 1999), achieved that distinction. A panel of Judges Williams, Ginsburg, and Tatel, in a per curiam opinion, decided a number of challenges to EPA=s 1997 ozone and particulate matter National Ambient Air Quality Standards (NAAQS) rules. The issue that received the most attention was the court=s opinion on the Nondelegation Doctrine (authored by Judge Williams), from which Judge Tatel dissented.

Under the Clean Air Act, EPA is to set NAAQS Arequisite to protect the public health@ with an Aadequate margin of safety.@ EPA considers both ozone and particulate matter to be non-threshold pollutants, meaning that they have some possibility of some adverse health impact at any exposure level above zero. Therefore, one might say that only a NAAQS of zero would be justified under the terms of the statute, but neither EPA nor any party to the lawsuit suggested such an interpretation of the statute. To the court, the question then became, how should the statute be interpreted to provide an intelligible principle governing EPA=s choice of a level above zero. EPA used certain criteria in assessing health effects for setting the NAAQS: the severity of the health effects involved, the certainty of the health effects involved, and the size of the populations affected. While these criteria themselves had been approved by earlier court decisions, they did not provide a basis for picking the particular level at which the standard should be set. That is, AEPA=s explanations for its decisions amount to assertions that a less stringent standard would allow the relevant pollutant to inflict a greater quantum of harm on public health, and that a more stringent standard would result in less harm.@ This explanation, however, would equally justify any level between zero and just below the level Aassociated with London=s >Killer Fog= of 1952.@ What it lacked was any justification or explanation for why the particular level was set where it was B at .08 ppm ozone, for example, rather than at .09 ppm or .07 ppm.. AWhat EPA lacks is any determinate criterion for drawing lines. It has failed to state intelligibly how much is too much.@

EPA cited several older D.C. Circuit decisions upholding Clean Air Act determinations on the basis that Awhen there is uncertainty about the health effects of concentrations of a particular pollutant within a particular range, EPA may use its discretion to make the >policy judgement= to set standards at one point within the relevant range rather than another.@ The majority, however, responded that none of those cases involved a claim of undue delegation. This case, the majority said, was like International Union, UAW v. OSHA, 938 F.2d 1310 (D.C. Cir. 1991), in which the court, also in an opinion by Judge Williams, held that OSHA=s interpretation of the OSH Act would be an unconstitutional delegation of legislative authority, because it would authorize any safety standard between nothing and what would put industry to the brink of ruin. There the court suggested that adopting a cost-benefit analysis basis for setting the standard would satisfy the nondelegation doctrine, but here prior precedent ruled out the possibility of using cost-benefit analysis as a basis for determining NAAQS. In any case, the court concluded that Aan agency wielding the power over American life possessed by EPA should be capable of developing the rough equivalent of a generic unit of harm that takes into account population affected, severity and probability.@ However, Aif EPA concludes that there is no principle available, it can so report to Congress, along with such rationales as it has for the levels it chose, and seek legislation ratifying its choice.@

It was widely, if inaccurately, reported in the press that the D.C. Circuit had held a portion of the Clean Air Act an unconstitutional delegation of legislative authority. As described above, this was not what the opinion said. Indeed, the opinion invited EPA to adopt an interpretation that would cabin its discretion, a task that OSHA met (albeit barely) in the replay of International Union, UAW v. OSHA, 37 F.3d 665 (D.C. Cir. 1994). One wonders whether the Federal Aviation Administration=s required retirement age for commercial pilots might be subject to the same criticism as EPA=s rule B what is the magic of 55 instead of 54 or 56?

The Nondelegation Doctrine was not the only issue in the case. There were also general claims that EPA had failed to comply with the Unfunded Mandates Reform Act=s requirement to prepare a Regulatory Impact Statement and the Regulatory Flexibility Act=s requirement to prepare a Regulatory Flexibility Analysis. Here the court found for EPA. First, it held that the Unfunded Mandates Reform Act precludes any judicial relief with respect to a rule being challenged. Second, it held that the Regulatory Flexibility Act only requires analyses of the significant economic impact on small entities when a regulation actually regulates those entities, not when it would merely have indirect impacts on them.

In addition, there were substantive challenges to both the ozone and particulate standards, and here the court agreed with the challengers on some points but not on others. The result was a remand of both standards, but the court did not vacate the ozone standard, because of its determination that it could not be enforced.

It has been a bad spring for EPA=s Clean Air office. In Environmental Defense Fund v. EPA, 167 F.3d 641 (D.C. Cir. 1999), the court invalidated EPA regulations on the grounds that they allowed certain Aconforming@ and Agrandfathered@ municipal transportation plans to receive federal funding notwithstanding a ban on such funding in the 1990 CAA amendments. In Sierra Club v. EPA, 167 F.3d 659 (D.C. Cir. 1999), the court remanded EPA=s medical waste incinerator emission standards for failure to adequately explain its decisionmaking process.

The Occupational Safety and Health Administration, in the spirit of Areinventing regulation,@ adopted something it called the Cooperative Compliance Program. Industry, however, did not cooperate; it sued to invalidate the program for having been adopted without notice and comment. In Chamber of Commerce of the United States v. U.S. Dept. of Labor, C F.3d ---- (D.C. Cir. 1999), the court agreed with industry. OSHA announced the program by issuing a ADirective@ that detailed the circumstances under which OSHA would institute investigations of some 12,500 relatively dangerous workplaces. As an initial matter the Directive placed these workplaces, because of their safety records, on a Aprimary inspection list@ that would subject each of them to a mandatory, comprehensive inspection before the end of 1999. Next came the cooperative part; workplaces could avoid these inspections (or at least reduce the risk of undergoing one by 70 to 90 percent) if the employer enrolled in the Cooperative Compliance Program. The most important part of this Program was a requirement that employers implement a particular comprehensive safety and health program, which the Directive indicated went beyond the requirements of the OSH Act. In other words, the Cooperative Compliance Program indicated that if employers that had particularly bad safety records committed to do more than was required by law, the agency would hold off its burdensome inspections to enforce the act.

The agency defended its failure to provide notice and comment by characterizing the Directive as either a procedural rule or a general statement of policy, neither of which would require notice and comment. Despite the agency=s argument that the Directive merely provided a public announcement of its new inspection plan and a voluntary employer program, the court found the Directive was a substantive, not a procedural, rule because it had Asubstantial impact upon all employers within its purview B including those that acquiesce in the agency=s use of >leverage= against them.@ The agency then argued that at least the Directive was only a general statement of policy, because it did not establish any binding legal norm. The court, however, maintained that policy statements do not bind the agency but leave Aagency decisionmakers free to exercise their informed discretion in individual cases.@ Here, if an employer enrolled in the program, the agency was not free to ignore that, and if it failed to enroll in the program, the agency had indicated a firm resolve to inspect it. This was inconsistent with the continued ability to exercise discretion.

The National Institute of Occupational Safety and Health wished to do a study of the health effects on miners from diesel exhaust, so it had its Board of Scientific Counselors peer review the protocol for the study. An organization of mining companies, believing the BSC had been improperly created under the Federal Advisory Committee Act, sued to enjoin the use of the protocol until it was review by a properly created peer review group. In Cargill, Inc. v. United States, 173 F.3d 323 (1999), the Fifth Circuit found that the chartering and use of the BSC had accorded with all the requirements of FACA but one -- NIOSH had filed the charter of the BSC with the House Commerce Committee rather than the House Labor Committee. FACA requires an advisory committee charter to be filed with the congressional committees having legislative jurisdiction over the agency to which the advisory committee reports, before any meetings of the advisory committee. Because the Department of Health and Human Services (of which NIOSH is a component) chartered the BSC, the charter was sent to the congressional committees with jurisdiction over HHS. The court, however, held that because the BSC was to report to NIOSH, rather than HHS, the congressional committees with jurisdiction over NIOSH, rather than HHS, should receive the charter.

In remanding the case to the district court, the court said that the fact that the violation Aseems trivial and inconsequential should not deter the court from granting some type of injunctive relief.@ Nevertheless, it went on to say that Athe district court need not automatically bar the use of all of the BSC=s work product@ as requested by the plaintiffs. The court concluded that the district court should Afashion an injunctive remedy that will encourage compliance with FACA=s strictures while remaining sensitive to its principal purposes of public accountability and avoidance of wasteful expenditures.@