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The lower courts decision in this case is hereby overturned. We disagree with the court s non-delegation decision and agree with Judge Tatle s dissent. The EPA is has not been delegated too much power, but that Congress has given them guidelines to follow that may be broad but do not constitute a non-delegation issue. Section 109 requires that the EPA publish air quality standards the attainment and maintenance of which in the judgment of the Administrator, based on such criteria and allowing an adequate margin of safety, and requisite to protect the public health. First, as per Judge Tatel s examples of Supreme Court cases giving precedent sustaining general congressional delegations, he is correct. Three examples are: national Broadcasting Co. v. United States (1943). The Communication Act of 1934 gave the FCC authority to regulate broadcast licensing in the public interest . This is a broad delegation of power, in the public interest ; the FCC can interpret the public interest and decide what is best for the public. In Yakus v. United States (1944), the authority to fix fair and equitable commodities prices was given to the Price Administrator. Finally, FPC v. Hope Natural Gas Co. (1944), the Federal Power Commission was allowed to determine just and reasonable rates. These agencies decide what is in the public interest , what are fair and Equitable commodities prices, and what are just and reasonable rates. These are no different than requisite to protect the public health which is the mandate given the EPA. This is more specific than the others because they must set standards that protect the public health and disregard other considerations such as economic analysis, impact on businesses, etc. Congress creates Administrative Agencies because it is impossible for the Legislature to collect all the information and manage all the details to follow through with the statutes that they pass. Agencies are given these tasks to allow a more efficient government that will be able to do what is necessary according to statutes by the Legislature. Agencies must be given flexibility in which to do their jobs. They have discretion but at the same time are checked by Judicial Review and Congressional Oversight. Both have been used in this case because the Act has been under regular congressional oversight hearings in Congress and has been reviewed by the Courts at least 10 times and we have not found these problems to be present in the past. This court agrees with Judge Tatle on these points he makes.
This is a broad delegation of power but not too broad. The EPA has been given a mandate and guidelines to follow to reach the goal of Congress. The EPA uses the Clean Air Act to guide them in their decision-making process on the standards they set. The EPA has given explanations for what they have done. In this case their explanation for setting the ozone level at .08ppm is rational according to their explanations. First, the affects below .08 are less than at higher levels and are transient and reversible . They can be fixed. Second, the set level should not be below the naturally occurring ozone level concentrations. Ozone background levels have been as low as .045 and as high as .075 (infrequently) from natural sources. The lower court s decision leads this court to believe that they would expect the EPA to make the level zero because then nothing will affect the public health. Setting this at zero is not an option here and is an overexertion of the lower courts ability. The EPA has given an explanation for what they have done, and it is justified. Even though they have justified this, the lower court finds that the EPA has no intelligible principle while Judge Tatel argues that requisite to protect the public health is an intelligible principle. They have been instructed to protect the public health and have used their guidelines to set standards that do just that. The EPA has not acted arbitrarily and capricious in their setting of the ozone standard and have used their delegated authority with proper care. This court sees no non-delegation problem here according to what the EPA has done or what Section 109 says. This is not too broad of a delegation and the EPA has not abused their delegated power. The cases shall not be remanded to the EPA for development of an intelligible principle because this court sees that they already have one and that their standards are allowable through their delegated power by Congress and in accordance with Congress
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