Is the Clean Air Act Unconstitutional?

This Article deals with two linked questions. The first involves the future of the Clean Air Act. The particular concern is how the Environmental Protection Agency ("EPA") might be encouraged, with help from reviewing courts, to issue better ambient air quality standards, and in the process to shift from some of the anachronisms of 1970s environmentalism to a more fruitful approach to environmental protection. The second question involves the role of the nondelegation doctrine in American public law, a doctrine that shows unmistakable signs of revival.

I will suggest that improved performance by EPA and agencies in general, operating in tandem with a new approach to judicial review, would make it altogether unnecessary to revive the nondelegation doctrine. Indeed, the nondelegation doctrine would emerge as a crude and unhelpful response to existing problems in modem regulation, even a form of judicial usurpation. Far better responses are available.