The Supreme Court Forces a U-Turn: The Fate of American Trucking

Environmental Law Reporter, August 2004

57 Pages Posted: 29 Jun 2004

Abstract

This Essay comments on the Supreme Court's decision in Whitman v. American Truckings Associations v. Browner, 531 U.S. 457 (2001) and on the District of Columbia Circuit Court's response in American Trucking Associations v. EPA, 283 F.3d 355 (D.C. Cir. 2002). The Essay suggests that Whitman is incorrect in suggesting that EPA decision-makers may not internally consider cost data; Whitman should be read as rejecting the proposed canon that statutes ought to be construed as allowing consideration of costs. Justice Breyer's concurring opinion, suggesting that the Clean Air Act ought to be construed as rejecting standards that would lead to deindustralization, is inconsistent with his reasoning about why the Act does not allow consideration of costs; Whitman's rejection of the claim that the Clean Air Act's standard-setting provisions violate the delegation doctrine is sound, and illustrates the tension between ensuring both accountability and rationality in agency decision-making; Whitman uses questionable reasoning in invalidating EPA's proposed approach to implementing revised air quality standards, and so unnecessarily hampers EPA's discretion on remand; the D.C. Circuit's rather cavalier approach on remand to whether EPA's decision-making was arbitrary is difficult to reconcile with its original opinion invalidating EPA's approach on delegation doctrine grounds, and is questionable in its reasoning.

Keywords: Environmental law, regulatory law, clean air act, administrative law

JEL Classification: K20, K23, K32

Suggested Citation

Oren, Craig N., The Supreme Court Forces a U-Turn: The Fate of American Trucking. Environmental Law Reporter, August 2004, Available at SSRN: https://ssrn.com/abstract=559082

Craig N. Oren (Contact Author)

Rutgers Law School ( email )

Newark, NJ
United States

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