The Ozone Rule That Wasn’t: How EPA Makes Decisions

Vol. 43 No. 3

Jim Wedeking is with the firm Sidley Austin, LLP in Washington, D.C. The contents of this article reflect the personal opinions of the author and do not necessarily represent those of Sidley Austin or its clients.

In early September 2011, the Obama administration withdrew its proposed rule to revise the National Ambient Air Quality Standard (NAAQS) for ozone to a level more stringent than the 2008 standard promulgated by the Bush administration. See generally 73 Fed. Reg. 16,436 (Jan. 19, 2010) (Obama administration proposed rule to revise ozone NAAQS); 73 Fed. Reg. 16,436 (Mar. 28, 2008) (2008 Ozone Rule). Both the 2008 Ozone Rule—and the 2011 decision not to revise it—have been challenged in court, as is the norm for major U.S. Environmental Protection Agency (EPA) rulemakings. These lawsuits, however, go beyond the typical petitions for review that focus on just agency discretion and procedural minutiae. They raise questions about who makes decisions at EPA. At first glance, the answer appears simple: The Clean Air Act charges “[t]he Administrator” with “prescribing a national primary ambient air quality standard” for air pollutants. 42 U.S.C. § 7409(a). However, the two recent ozone disputes suggest otherwise.

The 2008 Ozone Rule lowered the ozone NAAQS from 84 parts per billion (ppb) to 75 ppb. Despite the rule’s increased stringency, controversy erupted because it was less protective than the 60 to 70 ppb range recommended by EPA’s Clean Air Scientific Advisory Committee (CASAC) to then-Administrator Stephen Johnson. Congressman Henry Waxman, then the chairman of the House Oversight Committee, quickly denounced the standard for deviating from CASAC’s “expert advice.” Letter from Rep. Henry Waxman to Admin. Stephen L. Johnson (Mar. 12, 2008) at 1 (on file with author). Denunciations ignited into outrage after the Washington Post reported that the White House “pressured” EPA. Katherine Boyle, EPA standards under scrutiny at long-awaited Waxman hearing, Env’t & Energy Daily (May 19, 2008), available at www.earthportal.org/?page=1158.  

Congressman Waxman responded with subpoenas and a rancorous hearing. Katherine Boyle, Dems say Johnson is a puppet for White House, Env’t & Energy Daily (May 21, 2008). The subpoenas, and subsequent assertion of executive privilege, set the stage for a showdown between the political branches over who actually set the 2008 ozone standard. The resulting war of words saw Congressman Waxman invoking the dirty tricks of Richard Nixon and advocacy groups demanding that Administrator Johnson resign. Katherine Boyle, White House invokes executive privilege over subpoenaed docs, E&ENews PM (June 20, 2008); Anthony Lacey, Activists look to Congress to bolster push for Johnson resignation, InsideEPA.com (Mar. 21, 2008).

The change of administrations mooted the Congressional investigation. The new EPA administrator, Lisa Jackson, spurned the 2008 Ozone Rule as “not legally defensible” and vowed to issue a new standard in line with CASAC’s recommendation. Letter from Lisa Jackson to Sen. Thomas R. Carper (July 13, 2011) (on file with author). Administrator Jackson appeared to make good on her word, publishing a notice of proposed rulemaking to re-set the ozone NAAQS on January 19, 2010. 73 Fed. Reg. 16,436. But a funny thing happened on the way to a new ozone NAAQS: EPA withdrew the proposed rulemaking. This time, there was no doubt about who made the decision. President Obama publicly stated that he ordered the rule withdrawn. The process began anew; Congress geared up for hearings and environmental groups sued. Inhofe Seeks Urgent Ozone Hearing, InsideEPA.com (Oct. 26, 2011). 

These political dramas only served to cloud, not clarify, the central question of who makes the decisions at EPA. The dust-up over the 2008 Ozone Rule appeared to lay out the following ground rules: (1) the administrator makes the decisions, (2) unless he or she disagrees with the agency’s scientific advisors, and (3) under no circumstances should the president make any decisions because that would be “political.” These apparent ground rules raised significant concerns about the management of an executive branch agency.

 

The Unitary Executive theory

Lost in all of this was the opportunity to better understand the president’s role in managing executive agencies, as well as to test a coherent theory of administration. This theory is a challenge to the conventional view that “the President has no authority to make the decision himself, at least if Congress has conferred the relevant authority on an agency head.” Richard H. Pildes & Cass R. Sunstein, Reinventing the Regulatory State, 62 U. Chi. L. Rev. 1, 25 (1995). Under the conventional understanding, the president has no role in the substance of administration other than hiring and firing the agencies’ political appointees. By contrast, the Unitary Executive theory asserts that the Constitution prohibits Congress from delegating executive authority in a way that bypasses the president.

The Unitary Executive theory, long promoted by law professor Steven Calabresi, holds that the Vesting Clause of Article II, section 1, endows the entirety of the executive power in the president. Steven G. Calabresi & Saikrishna B. Prakash, The President’s Power to Execute the Laws, 104 Yale L.J. 541, 581 (1994). Although Congress may create inferior executive officers, those officers may exercise the executive power only through implicit presidential delegation. Id. at 593-95. This relieves the president from personally delivering the mail, collecting tariffs, coining money, and so on, id. at 593, while preserving the president’s ability to make important decisions. Granted, the president only “executes” the law, and thus, any agency decision that violates statutory criteria will be vacated regardless of whether the president or the administrator made that decision. See Whitman v. Am. Trucking Ass’ns, Inc., 531 U.S. 457 (2001) (vacating NAAQS standards for considering costs in violation of statute). However, where Congress leaves decisions to an agency official’s discretion, it is by necessity the president’s discretion as well.

Presidential control over administrative agencies has taken its lumps from the Supreme Court in the past. The Court upheld Congress’ power to limit the circumstances under which the president can remove members of “independent” agencies in Humphrey’s Executor v. United States, 295 U.S. 602 (1935) (Federal Trade Commission) (Humphrey’s Executor). To the Court, “[t]he authority of Congress, in creating quasi-legislative or quasi-judicial agencies, to require them to act in discharge of their duties independently of executive control cannot well be doubted….” Id. at 629. The Court reached the same conclusion in similar cases involving legislative restrictions on the president’s removal powers. See Wiener v. United States, 357 U.S. 349 (1958) (prohibiting removal of War Claims Commission member); Morrison v. Olsen, 487 U.S. 654 (1988) (independent counsel law did not violate Appointments Clause or impinge on president’s executive powers). None of these cases, however, directly addressed the constitutional issue raised by legislation that appears to delegate executive power to agency officials and to the exclusion of the president.

Over the years, the Unitary Executive theory has garnered diverse support, in whole or in part. See Sierra Club v. Costle, 657 F.2d 298, 406 (D.C. Cir. 1981) (Wald, J.) (“[t]he authority of the president to control and supervise executive policymaking is derived from the Constitution….”); Neal Katyal, Internal Separation of Powers: Checking Today’s Most Dangerous Branch from Within, 115 Yale L.J. 2314, 2318 (2006) (endorsing Unitary Executive theory with caveats regarding internal checks on executive power); Elena Kagan, Presidential Administration, 114 Harv. L. Rev. 2245, 2251 (2001) (endorsing president’s authority to direct agency decisions on statutory interpretation grounds instead of constitutional basis); Lawrence Lessig & Cass R. Sunstein, The President and the Administration, 94 Colum. L. Rev. 1 (1994) (endorsing strong unitary executive on policy grounds while rejecting constitutional basis). Many of these endorsements are due to a shift in thinking as to why administrative agencies make so many policy decisions. 

 

The presumption of agency neutrality and expertise

The language of Humphrey’s Executor, describing administrative agencies as “non-partisan,” “act[ing] with entire impartiality” and “exercise[ing] the trained judgment of a body of experts,” now seems antiquated. 295 U.S. at 624. In fact, these presumptions have been eroding for some time, giving way to a view of administrative agencies as being politically accountable through the president. See Lessig & Sunstein, supra, at 94; Kagan, supra, at 2331–39. Nobody practicing environmental law believes that EPA acts in a completely non-partisan or impartial manner, as the Humphrey’s Executor Court did. EPA during the Bush administration was the “Bush EPA.” The subsequent “Obama EPA” was expected to enact different policies than its predecessor because the two presidents had different beliefs and philosophies. For the sake of political accountability, these differences should change the agency’s priorities and how its administrator exercises its discretion. Political opponents have frequently cited EPA decisions as reasons to vote out the president in order to change what EPA is doing. See, e.g., John M. Broder & Kate Galbraith, E.P.A. Is Longtime Favorite Target for Perry, N.Y. Times (Sept. 29, 2011) (discussing attacks on EPA by presidential candidate Governor Rick Perry).

A case for EPA independence from the president cannot hang on agency expertise, as cited by Humphrey’s Executor, either. The Clean Air Act leaves NAAQS decisions to “[t]he Administrator.” 42 U.S.C. § 7409(a). Yet, Stephen Johnson and Lisa Jackson are the first EPA administrators with scientific credentials; their predecessors were attorneys (Ruckleshaus, Train, Costle, Gorsuch, Reilly, Browner) and governors (Whitman, Leavitt). Career staff supply the agency expertise. Their recommendations are reviewed, questioned, and ultimately accepted or rejected by the administrator. Where the president is the one making a discretionary decision, the process is no different. Recognizing that the president is responsible for agency decisions would not change how courts view those decisions. In fact, the sina qua non of administrative law, Chevron deference, is premised on the political accountability of the president, not the EPA administrator: “While agencies are not directly accountable to the people, the Chief Executive is, and it is entirely appropriate for this political branch of the Government to make such policy choices….” Chevron U.S.A., Inc. v. NRDC, Inc., 467 U.S. 837, 865 (1984). Thus, acknowledging the president’s ability to direct EPA decision-making would do nothing other than make the practice more transparent.

Litigation over both ozone rules—the one that was and the one that wasn’t—will plow forward. But, one must not lose sight of what is buried in these relatively obscure and technical agency decisions—a very real and basic question about who makes decisions in the executive branch that is as old as the administrative state itself.

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