Is the Clean Air Act Unconstitutional?

Abstract:     
This article argues (1) against revival of the nondelegation doctrine, and (2) in favor of a kind of "democracy-forcing minimalism" for administrative law. As against a prominent recent trend in the DC Circuit, it claims that the nondelegation doctrine should be reserved only for the most egregious cases and that its appropriate use is in tools of statutory construction and certain "nondelegation canons." The Clean Air Act is constitutional because it sets floors and ceilings on agency action. But in issuing ambient air quality standards, the EPA should be required to compare the chosen standard with at least two alternatives, one more stringent and one less stringent; it should quantify the benefits of the three options, to the extent feasible; and it should explain why the chosen alternative is preferable in terms of the "residual risk." Reviewing courts should require the EPA to perform this task, usually by "remanding without invalidating" inadequately justified air quality regulations. There is discussion as well of possible amendments to the Clean Air Act.

Note: This article formerly was Univ. of Chicago Law School, Public Law and Legal Theory Working Paper No. 03

Accepted Paper Series