Browner v. American Trucking Association

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Cato’s brief, joined by the Institute for Justice, argues that Section 109(b)(1) of the Clean Air Act is unconstitutional when applied to non‐​threshold pollutants, because the Act does not supply the Environmental Protection Agency with a method by which to determine if these pollutants are allowable according to its Ambient Air Quality Standards. Specifically, the brief asserts that Congress violated the non‐​delegation doctrine here, thereby jeopardizing the separation of powers that the Framers believed was essential to the protection of individual liberty. By failing to provide clear guidelines concerning non‐​threshold pollutants, Congress failed to set forth an intelligible principle with which to guide the EPA’s actions. Because of the non‐​delegation doctrine, in this case the EPA does not have the power to set these thresholds itself.