Better Ways To Decide American Trucking. J. B. Wiener, Duke University
The decisions of the U.S. Supreme Court and the D.C. Circuit in American Trucking have generated great interest, largely over their disposition of the nondelegation doctrine and the consideration of cost under the NAAQS provisions of the Clean Air Act. The paper begins with a critique of the judiciary’s handling of the case. The Supreme Court’s decision was widely viewed as a victory for EPA’s resistance to considering cost, but may also be read as a loss for the agency’s discretion to administer its own statutes. The D.C. Circuit’s opinion was widely viewed as a loss for the agency’s focus on health effects alone, but also contained a remedy that would have empowered the agency. Based on this critique, the paper suggests ways that this case could have been decided differently, with arguably better results for both public health and the regulatory process. First, it suggests that the Supreme Court could have upheld EPA’s standard-setting in the American Tucking case without constraining the agency’s discretion to consider factors it deems important in the future. Second, it suggests that the EPA could have satisfied the D.C. Circuit’s nondelegation doctrine without considering cost but instead by considering risk-risk tradeoffs, an issue on which the agency lost before the D.C. Circuit and did not appeal (and hence must now address anyway), and on which the court would likely have deferred to the agency had the agency addressed it more thoroughly. Third, the paper suggests that Congress could reduce judicial intrusion on agency standard-setting by authorizing agencies to choose the optimal type of regulatory analysis to employ, based on value-of-information criteria.
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