Is the Clean Air Act Unconstitutional?
Cass R. Sunstein
Harvard Law School
AEI-Brookings Joint Center Working Paper No. 99-07
When the Environmental Protection Agency (EPA) issues national ambient air quality regulations, it should meet two requirements. First, the EPA should specify, to the extent possible in quantitative terms, the range of benefits that it believes will follow from each new rule it seeks to promulgate. It should specify as well the range of benefits that it believes would follow from at least two alternate approaches, one stricter and one more lenient than the chosen regulation. In the process the agency should describe the level of "residual risk" under all three options. Second, the EPA should explain why it believes the chosen rule to be preferable to the alternatives - that is, why the benefits to flow from the selected rule justify that rule and why the benefits that would follow from the alternative rules, more and less stringent, fail to justify it.
If necessary, the courts should require the EPA to carry out the proposed tasks. But when the EPA does perform these tasks, and does so reasonably, the courts should uphold the underlying regulations.
The introduction of these changes would eliminate the need for any resurgence of interest in the nondelegation doctrine, which should be reserved only for the most egregious cases. The Clean Air Act is constitutional.
Number of Pages in PDF File: 49
JEL Classification: Q25, K32, N5working papers series
Date posted: June 6, 2001
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