The Inherent Limits on Judicial Control of Agency Discretion: The D.C. Circuit and the Nondelegation Doctrine
The article discusses American Trucking Associations v. EPA, in which a two-judge majority of a DC Circuit panel held that the section of the Clean Air Act that authorizes EPA to set primary air quality standards applicable to criteria pollutants is unconstitutional as interpreted by EPA. The court held the EPA interpretaion unconstitutional because it provides no criteria for determining how much pollution is too much. The court remanded to allow EPA the opportunity to adopt a saving interpretation of the statute by adopting a binding determinate decision making standard that EPA and a court can apply to determine how much is too much.
Pierce argues that the ATA dispute is symptomatic of "the science charade" -- the tendency of legislatures and courts to demand more of science than science can deliver and to find more in science than is there. He argues that there is no available decision making standard that can satisfy the demands of the ATA majority. He also argues that the remedy imposed by the court is profoundly antidemocratic. Depending on how it is interpreted and applied, it either authorizes politically unaccountable judges to overrule policy decisions made by Presidents or it authorizes (and requires) a President to make a policy decision that binds his successors. Under either interpretation, the holding reduces the power of the electorate to influence policymaking by participating in Presidential elections.
Richard J. Pierce Jr., The Inherent Limits on Judicial Control of Agency Discretion: The D.C. Circuit and the Nondelegation Doctrine, Admin. L. Rev. (2004).