The Clean Air Act, 42 U.S.C.S. § 7407(d), specifies three different times at which an area can be designated nonattainment for ozone: immediately following enactment of the 1990 amendments; after the environmental Protection Agency (EPA) revises the ozone national ambient air quality standards (NAAQS); and when an area that was in attainment, either when the Congress enacted the 1990 amendments or when the EPA promulgated a revised ozone NAAQS, later ceases to comply.
Defendant Environmental Protection Agency issued final rules revising primary and secondary national ambient air quality standards (NAAQS) for particulate matter (PM) and ozone. Numerous petitions were filed seeking review of each rule on the ground that defendant's construction of the Clean Air Act, asserting that promulgating the NAAQS constituted an unconstitutional delegation of legislative power.
Did the defendant’s construction of the Clean Air Act constitute an unconstitutional delegation of legislative power?
The court held that defendant's construction of the Clean Air Act on which it relied in promulgating the NAAQS, constituted an unconstitutional delegation of legislative power because its construction of the act left it free to set NAAQS at any point between zero and concentrations which would yield "killer fog." The cases were remanded to allow defendant to develop a construction of the act that would constitute a constitutional delegation of power. The court rejected claims that § 7409(d) allowed defendant to consider costs and that NAAQS revisions violated several other Congressional acts. Moreover, defendant's ability to enforce new ozone NAAQS was limited, its choice of particulate matter as the indicator for coarse particulate matter was arbitrary and capricious, it was not required to treat particulate matter as a new pollutant, and defendant was not required to set secondary NAAQS so as to eliminate all adverse visibility effects.