Is the Clean Air Act Unconstitutional?

AEI-Brookings Joint Center Working Paper No. 99-07

49 Pages Posted: 6 Jun 2001

See all articles by Cass R. Sunstein

Cass R. Sunstein

Harvard Law School; Harvard University - Harvard Kennedy School (HKS)

Multiple version iconThere are 2 versions of this paper

Date Written: August 1999

Abstract

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.

JEL Classification: Q25, K32, N5

Suggested Citation

Sunstein, Cass R., Is the Clean Air Act Unconstitutional? (August 1999). AEI-Brookings Joint Center Working Paper No. 99-07, Available at SSRN: https://ssrn.com/abstract=269493 or http://dx.doi.org/10.2139/ssrn.269493

Cass R. Sunstein (Contact Author)

Harvard Law School ( email )

1575 Massachusetts Ave
Areeda Hall 225
Cambridge, MA 02138
United States
617-496-2291 (Phone)

Harvard University - Harvard Kennedy School (HKS) ( email )

79 John F. Kennedy Street
Cambridge, MA 02138
United States

Do you have a job opening that you would like to promote on SSRN?

Paper statistics

Downloads
127
Abstract Views
2,535
rank
67,333
PlumX Metrics