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The Right to Breathe - Clean Air Litigation Reaches the Supreme Court

    The litigation of Michigan et al. v. EPA was recently granted a hearing in the Supreme Court. The case involves the EPA's decision to classify power plants as "emissions sources" under 42 U.S.C. 7412, which gives the agency general discretion to regulate pollution. Petitioners - Michigan, associated states, and several private parties - contend that the EPA's classification is "unreasonable."
    In a sentence, the question before the Court is: "Does the government have the right to protect its citizens against a recognized threat to their health and safety?" The legal reasoning supporting the EPA revolves around the following points:
    1. If a law is valid, then it can "reasonably" be enforced;
    2. Every citizen has a right to breathe clean air;
    3. Government has a right to regulate what it owns;
    4. Therefore, a reversal would encroach on Congressional powers; and
    5. Air quality is an interstate, and so federal, issue.

    The limits and extent of the power of federal and state agencies to regulate subordinate governmental and private practices is one of the oldest and most controversial subjects to come before that Court. In 1819 John Marshall first enunciated the essential right of the United States to enforce its valid and reasonable laws without interference: "The sound construction of the Constitution must allow to the national legislature that discretion, with respect to the means by which the powers it confers are to be carried into execution, which will enable that body to perform the high duties assigned to it, in the manner most beneficial to the people." M'Culloch v. Maryland, 4 Wheat. 316. This reasoning was specifically reaffirmed in Federal Land Bank v. Bismark Lumber Co., 314 U.S. 95 (1941), Van Brocklin v. Tennessee, 117 U.S. 151 (1886), and United States v. Allegheny County, 322 U.S. 174 (1944).
    In the 1825 litigation Wayman v. Southard, 10 Wheat. 1, Marshall established the principle that this authority is not lost in the event that Congress delegates a function over which it has control to another agency. "A general provision," he wrote in that case, "may be made, and power given to those who are to act under such general provisions to fill up the details." Also, Willson v. Blackbird Creek Marsh Co., 2 Pet. 245 (1829), introduced a new grounds on which a state could regulate a subject - substantial benefits to citizens' health and property.
    As time went on the government's right to provide for the public welfare and enforce its statutes was clarified even more extensively. In Brown v. Maryland, a case involving another dispute between federal and state authorities, it was held per Chief Justice Marshall:"It has been observed that the powers remaining with the states may be so exercised as to come in conflict with those vested in Congress. When this happens, that which is not supreme must yield to that which is supreme. This great and universal truth is inseparable from the nature of things, and the Constitution has applied it to the often interfering powers of the general and state governments, as a vital principle of perpetual operation. It results necessarily from this principle that the... power of the states must have some limits. It cannot reach and restrain the action of the national government within its proper sphere."  25 U.S. 419 (1827). In United States v. Wrightwood Dairy Corp., it was held that "no form of state activity can constitutionally thwart the regulatory power granted... to Congress. Hence, the reach of that power extends to those intrastate activities which in a substantial way interfere with or obstruct the exercise of the granted power." 315 U.S. 110 (1942). In re Neagle, 135 U.S. 1 (1890), confirms this doctrine by holding that a federal employee cannot be prosecuted by a state for an offense committed as a necessary part of his job.
    In United States v. Chandler-Dunbar Water Power Co., 229 U.S. 53 (1913), the Court, per Justice Lurton, concluded that Chandler-Dunbar could not own the riverbed of a navigable stream, seeing as Congress had been granted the exclusive right to control such waterways, despite the company's claim to have title to the land surrounding it. A similar conclusion was reached in Ashwander v. Tennessee Valley Authority, 297 U.S. 288 (1936), which upheld an act of Congress establishing the TVA as a "necessary and proper" exercise of the duties delegated to the legislature.
    In 1940, Franklin Roosevelt's Executive Order 8773 on the seizure of the North American Aviation Co. plant at Inglewood, California, as well, was necessitated by a protracted labor dispute in which attempts at arbitration had failed, and the imminence of World War II made the continued manufacture of airplanes for the national defense crucial. This use of administrative dominance was held to be constitutional.

    The United States' prerogative to enforce its laws without intervention from lower authorities has also proved quite powerful in cases less specific to the circumstances of this litigation. It has allowed a federal district court hearing a diversity case to disregard the decision of a State Supreme Court. Terry v. Sharon, 131 U.S. 40 (1889). It has allowed another district court to issue valid injunctions in cases where it could not hold  technical in personam jurisdiction over the defendants. In re Debs, 158 U.S. 564 (1895). It has allowed the government itself to hold that a state has no title to unclaimed lands within its borders, if the U.S. has already formulated plans for the land's use. United States v. Gratiot, 39 U.S. 526 (1840). It has allowed a federal agency to impose penalties on a farmer for growing more wheat than it deemed advisable, even though the wheat was consumed at his home and never entered commerce of any sort. Wickard v. Filburn, 317 U.S. 111. It has allowed Congress' antitrust statutes to reach beyond their strict jurisdiction over interstate commerce. United States v. Women's Sportswear Mfg. Ass'n, 336 U.S. 460 (1949). It has even allowed an employee of the government to kill a man without standing trial in the state courts, if his occupation obligates him to do so. In re Neagle, supra. It would follow that the privilege sanctioning all these actions would likely cover measures to ban certain pollutants from the air.
    Throughout the continuous controversies arising on the subject of alleged federal overreaching into state or personal matters, the Court has consistently recognized that Congress, the President, and other appropriate agencies have a core function of ensuring the stability and welfare of the nation as a whole. As the Court opined per the second Justice Rutledge, "a strong showing is required, both of inadequacy of the prescribed procedure and impending harm, to permit short-circuiting of the administrative process." Aircraft & Diesel Equipment Corp. v. Hirsch, 331 U.S. 752 (1947). The consequences of a ruling controverting this would be far-reaching and adverse.

    Chief Justice Charles Evans Hughes, in his opinion for the Court in the 1937 case of West Coast Hotel Co. v. Parrish, sustained in ringing words a universal right to certain social liberties, which, although not expressly enumerated in the Constitution, are still vital: "The Constitution does not recognize an absolute and uncontrollable liberty. Liberty in each of its phases has a history and a connotation. But the liberty safeguarded is liberty in a social organization which requires the protection of law against the evils which menace the health, safety, morals and welfare of the people. Liberty under the Constitution is thus necessarily subject to the restraints of due process, and regulation which is reasonable in relation to its subject and is adopted in the interests of the community is due process." 300 U.S. 379.
    Though the ruling in Parrish was revolutionary due to its dramatic reversal of earlier cases, the concept expounded was an old and well-known one to the Court that extended its meaning. It opined in Phalen v. Virginia that "the suppression of nuisances injurious to public health or morality is among the most important duties of government." 49 U.S. 163 (1850). It said in Hamilton v. Regents that "government... owes a duty to the people... to preserve itself in adequate strength to maintain peace and order and to assure the just enforcement of law." 293 U.S. 245 (1934). It wrote in Chicago B. & Q. R. Co. v. McGuire that "the guaranty of liberty does not... deny to government the power to provide restrictive safeguards. Liberty implies the absence of arbitrary restraint, not immunity from the interests of the community." 219 U.S. 549 (1911). In Nebbia v. New York, it observed per Justice Roberts that "government cannot exist if the citizen may at will use his property to the detriment of his fellows." 291 U.S. 502 (1934). In Griffin v. Illinois, 351 U.S. 12 (1956), it called due process "the least frozen concept of our law... the least confined to history and the most absorptive of powerful social standards of a progressive society." In Cox v. New Hampshire, it proclaimed that "civil liberties, as guaranteed by the Constitution, imply the existence of an organized society maintaining public order without which liberty itself would be lost in the excesses of unrestrained abuses." 312 U.S. 569 (1941). Also, in Cantwell v. Connecticut, it unanimously agreed that "when clear and present danger of... immediate threat[s] to public safety, peace, or order appears, the power of the State to prevent or punish is obvious." 310 U.S. 296 (1940).
    Lastly, in the 1908 case of Muller v. Oregon, 208 U.S. 412, the Court held that a contract with female laundry workers providing for a work day longer than ten hours was clearly unconscionable, despite the employers' contentions that the state's wages-and-hours statute violated their liberty to bargain freely with the laundresses for their labor. The reason for the ruling was plain: the employment conditions were obviously injurious to the women's health, and Oregon had a reasonable interest in protecting the welfare of its citizens. These citizens had contracted to work in dangerous circumstances; they had not been coerced to do so; yet holding them to these terms was an illicit travesty of their right to a safe, sanitary, and fair job.
    The citizens of this country who live near power plants have not voluntarily agreed to inhale poisonous substances, drink contaminated water, consume adulterated foods, or accept substandard quality of the natural elements around them. They have not signed away their rights to a salubrious lifestyle or clear blue sky. Yet, if the respondent EPA is deprived of the authority to enforce 42 U.S.C. §7412, these citizens will no longer enjoy those liberties. They will be exposed to countless compounds which are scientifically proven to be harmful and hazardous materials, some of which are linked to cancer, birth deformities, and other irreversible injuries. These are the risks which the EPA, a constitutionally authorized body, is charged with eliminating, and it is hardly an unreasonable encroachment on individual rights to maintain the collective interests of society in an uncontaminated and natural environment.

    By contending that the respondent's classification of power plants as sources of harmful emissions is "unreasonable," petitioners argue that the federal government does not have sufficient jurisdiction to regulate the quality of the air and, by extension, that they have the right to release substances into it. However, this claim is undermined by 49 U.S.C. §40103, which provides explicitly that "the United States Government has exclusive sovereignty of airspace of the United States." (Emphasis supplied). This property is placed in the government's hands for vital reasons - to protect our skies for defense purposes, monitor meteorological conditions, maintain communications networks, deliver the mails, train and deploy the Air Force, and prevent aircraft accidents. The petitioners do not in any way challenge §40103. Rather, they are attempting to divest the United States of the ability to act pursuant to it.
    Petitioners cannot very easily claim that statutes regarding federal property "unreasonably" deprive them of any right. In fact, seeing as they are not directly injured by the government's management of its own territories, their standing to sue in this case is questionable. As Justice Pitney wrote for the Court:"Considerations of propriety, as well as long-established practice, demand that we refrain from passing upon the constitutionality of an act of Congress unless obliged to do so in the proper performance of our judicial function, when the question is raised by a party whose interests entitle him to raise it." Blair v. United States, 250 U.S. 273 (1919). With that in mind, a reversal would allow petitioners to, firstly, encroach on federal property and, secondly, deprive the federal government of its power to make rules for itself on how to manage this property. As the Court said in Wickard v. Filburn, supra, "it is hardly lack of due process for the government to regulate that which it subsidizes" - or owns outright.

    In its controversial decisions in countless issues over the course of several centuries, the Court has maintained its great reluctance to overreach by deciding issues beyond its proper jurisdiction. Throughout its long history, it has cautioned against its assumption of what it has deemed to be "function[s] never conferred upon it by the Constitution, and against the exercise of which the Court has steadily set its face from the beginning." Muskrat v. United States, 219 U.S. 346 (1911). In Williams v. Georgia it wrote that "if a fundamental constitutional right is not presented, we have no duty to act." 349 U.S. 375 (1955). In Griswold v. Connecticut, it cautioned the courts against acting as a "superlegislature to weigh the wisdom of legislation." 381 U.S. 479 (1965). In Currin v. Wallace, it wrote even more forthrightly about matters that should properly be left to Congressional discretion:"It is... the essence of the plenary power conferred that Congress may exercise its discretion in the use of the power. Congress may choose the commodities and places to which its regulation shall apply. Congress may consider and weigh relative situations and needs. Congress is not restricted by any technical requirement but may make limited applications and resort to tests so that it may have the benefit of experience in deciding upon the continuance or extension of a policy which under the Constitution it is free to adopt." 306 U.S. 1 (1939). Also, in Ferguson v. Skrupa, it maintained "the original constitutional proposition that courts do not substitute their social and economic beliefs for the judgment of legislative bodies, which are elected to pass laws." 372 U.S. 726 (1963).
    More specifically to the present case, it has also been wary of undue interference with the duties of administrative agencies. As Justice Douglas ascertained for a majority of the Court in Berman v. Parker, "when the legislature has spoken, the public interest has been declared in terms well nigh conclusive. In such cases, the legislature, not the judiciary, is the main guardian of the public needs to be served by social legislation." 348 U.S. 26 (1954). In Chevron v. National Resources Defense Council, it was held: "If Congress has explicitly left a gap for the agency to fill, there is an express delegation of authority to the agency to elucidate a specific provision of the statute by regulation. Such legislative regulations are given controlling weight unless they are arbitrary, capricious, or manifestly contrary to the statute." 467 U.S. 837 (1984).
    Furthermore, in Morton v. Ruiz, the Court also decided that "the power of an administrative agency to administer a congressionally created... program necessarily requires the formulation of policy and the making of rules to fill any gap left, implicitly or explicitly, by Congress." 415 U.S. 199 (1974). In Field & Co. v. Clark, it held per Justice Harlan:"The legislature cannot delegate its power to make a law, but it can make a law to delegate a power to determine some fact or state of things upon which the law makes or intends to make its own action depend. To deny this would be to stop the wheels of government. There are many things upon which wise and useful legislation must depend which cannot be known to the lawmaking power, and must therefore be a subject of inquiry and determination outside of the halls of legislation." 143 U.S. 694 (1892). In the 1911 case United States v. Grimaud, it wrote per Justice Lamar:"From the beginning of the government, various acts have been passed conferring upon executive officers power to make rules and regulations - not for the government of their departments, but for administering the laws which did govern... When Congress had legislated and indicated its will, it could give to those who were to act under such general provisions "power to fill up the details" by the establishment of administrative rules and regulations." 220 U.S. 506. In West Ohio Gas Co. v. Public Utility Commission, it demarcated the boundaries of its judicial competence even more clearly: "This Court does not sit as a board of revision with power to review the action of administrative agencies upon grounds unrelated to the maintenance of constitutional immunities." 294 U.S. 63 (1935).
    In this case, by asking the Court to deprive the EPA of the authority to enforce federal laws in the way it sees fit, petitioners are asking for a blatant misappropriation of authority rightly belonging to Congress. Seeing as the airspace they seek unregulated use of is, as has been conclusively established above, federal property, there is no "constitutional immunity" at stake for the Court to preserve by entering a reversal here.

    The Commerce Clause is another source of the EPA's authority to regulate air emissions in the way it sees fit. The statute at the heart of the present controversy, 42 U.S.C. §7410(a)(2)(D)(i), provides in part that it is illegal for a state to "interfere with measures required to be included in the applicable implementation plan for any other State... to prevent significant deterioration of air quality or to protect visibility." This provision and the regulations made pursuant to it do not infringe on petitioners' constitutional rights in any way, and are therefore "reasonable."
    The contention that the petitioners are not specifically engaged in "commerce between the several states" is disposed of by the Court's past rulings. In Gibbons v. Ogden, for example, a transportation trust was held to be an interstate operation, despite the fact that it only had a monopoly on steamboat routes in New York waters; in his opinion for the Court, Chief Justice Marshall said of Congress' power over interstate commerce: "It is the power to regulate; that is, to prescribe the rule by which commerce is to be governed. This power, like all others vested in Congress, is complete in itself, may be exercised to its utmost extent, and acknowledges no limitations other than are prescribed in the Constitution... If, as has always been understood, the sovereignty of Congress, though limited to specified objects, is plenary as to those objects, the power over commerce with foreign nations, and among the several states, is vested in Congress as absolutely as it would be in a single government." 9 Wheat. 1 (1824). In Mondou, et al. v. New York, N.H. & H.R. Co., the Court decided per Justice Van Devanter that "the term 'commerce' comprehends more than the mere exchange of goods. It embraces commercial intercourse in all its branches." 223 U.S. 1 (1912). In the Minnesota Rate Cases, it set forth unanimously:"There is no room in our scheme of government for the assertion of state power in hostility to the authorized exercise of federal power. The authority of Congress extends to every part of interstate commerce, and to every instrumentality or agency by which it is carried on, and the full control by Congress of the subjects committed to its regulation is not to be denied or thwarted by the commingling of interstate and intrastate operations." 230 U.S. 352 (1913).
    Just last year, in a decision particularly apposite to the case at hand, the Court ruled on the case of EPA v. EME Homer City Generation, 134 S. Ct. 1584 (2014). In that case, it was conclusively established that pollution is a decidedly interstate issue because gases, of nature, do not respect political boundaries:"Further complicating the problem, pollutants do not emerge from the smokestacks of an upwind State and uniformly migrate downwind. Some pollutants stay within the upwind States' borders, the wind carries to other downwind States, and some subset of that group drifts to States without air quality problems. 'The wind bloweth where it listeth, and thou hearest the sound thereof, but canst not tell whence it cometh, and whither it goeth...' In crafting a solution to the problem of interstate air pollution, regulators must account for the vagaries of the wind."
    Undermining the EPA's right to do so would not only reverse the circuit court in this case, but countless rulings of the Court over the course of the two hundred and twenty-six years it has sat as this nation's highest tribunal.


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