NCPA - National Center for Policy Analysis

Applying The Constitution To The EPA

May 18, 1999

Critics ranging from business leaders to constitutional scholars are lauding the U.S. Court of Appeals for the District of Columbia for finally reining in the Environmental Protection Agency. By a two-to-one decision, the court last week found that agency officials had overstepped the bounds of constitutional authority in issuing regulations under the Clean Air Act.

The main issue involves whether unelected EPA bureaucrats should be allowed to make laws, or whether lawmaking is the prerogative of Congress -- as the Constitution states.

  • The court referred to a 1928 Supreme Court decision known as the "non-delegation doctrine" which is designed 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."
  • Thus, the Appeals Court held that Congress had violated the Constitution's separation of powers by delegating too much of its authority to the EPA.
  • If upheld on appeal to the Supreme Court, critics hope the doctrine will be applied to activities promoted by the Americans With Disabilities Act and regulations emanating from the Occupational Health and Safety Administration.

The EPA's sweeping ozone and particulate matter rules were already a source of scientific contention:

  • The agency's science advisory board concluded that the new ozone rule did not deal with any new significant risk not already addressed by the rule it replaced.
  • The board was unable to identify any proper level of fine particulate matter to regulate.
  • It was widely recognized that extensive research was necessary to develop any implementing regulations for particulate matter.
  • There was no unrebutted evidence that the ozone rule could cause more harm than good to public health.

Sources: Editorial, "Red Light for Regulators," and C. Boyden Gray and Alan Charles Raul (lawyers), "The Courts Thwart the EPA's Power Grab," both Wall Street Journal, May 18, 1999.


Browse more articles on Government Issues