Red Light for Regulators

Copyright 1999 Wall Street Journal
May 18, 1999

"Ludicrous," yelped someone from the Sierra Club when a federal appeals court on Friday struck down the Clinton Administration's new clean air standards. Actually a lot of us--perhaps umpteen million Americans who've tried to comply with any old rule someone in Washington dreamed up--have been wondering when the courts would rediscover the "non-delegation doctrine" cited in Friday's decision.

Fashioned by the Supreme Court in 1928, here's one of the things it said in way back when: A key function of the non-delegation doctrine is to "ensure to the extent consistent with orderly governmental administration that important choices of social policy are made by Congress, the branch of our Government most responsive to the popular will." Sounds sensible to us. But opinions differ; commenting on the case in a New York Times editorial on Saturday, reporter Linda Greenhouse said the doctrine had been a "non-issue" since the New Deal. "Nonetheless, the flame has never quite died among conservative legal scholars and judges."

In the columns nearby, Boyden Gray and Alan Raul suggest that the doctrine's application may not be all that hoary, nor will it permit the sky to darken with soot. The three-judge panel unanimously questioned the Environmental Protection Agency's selective use of science in formulating its rule, and in a 2 to 1 decision ruled that Congress had violated the Constitution's separation of powers by delegating too much of its authority to the EPA. If upheld by the Supreme Court, the decision could have far-reaching effects.

The core opinion, written by Judges Stephen Williams and Douglas Ginsburg, found that the EPA had interpreted the Clean Air Act so as to give it carte blanche authority to issue ozone standards and to regulate microscopic soot particles. Examining these rules, the court identified a certain "indeterminacy." It concluded that the agency "offers no intelligible principle by which to identify a stopping point." We suspect that more than a few independent businessmen visited over the years by the ghostbusters from EPA, OSHA and the rest have themselves marveled at the variability of any such "stopping point."

An EPA spokesman says the agency will appeal because the ruling is one of the "most disturbing" it has ever faced. It's about time.

That 1928 ruling's reference to Congress being reflective of the popular will is especially appropriate. Some 25 years ago, the popular will was indeed to clean up the nation's air and water. Despite some lingering problems, that goal has been accomplished. Fat striped bass are again being pulled from the Hudson River by sport fishermen. But Congress, as is widely recognized, got lazy, enacting legislation written in impossibly vague language, such as the Americans With Disabilities Act, and then offloading the you-figure-it-out job to bureaucrats who have no political accountability.

It was inevitable that this obvious imbalance and the bureaucrats' overreaching would cause a reckoning. In a world of more "orderly governmental administration" (again, the Court in 1928), the so-called new Democrats of the Clinton Administration would themselves have rationalized these bureaucracies' outsized powers. But this EPA's attempt to wave pollution toward zero shows no such restraint was ever in the cards. Some things will never change.

The appeals court's invalidation of the EPA's big-ticket air quality standards is one of the bigger events in the recent history of the federal establishment. It may yet bring about a Supreme Court ruling on the degree to which such agencies can be left alone to make up the rules of American life.

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