Evaluating EPA's arguments for RFS waiver authority
Finally, in 2001 the Supreme Court reviewed an EPA argument for authority under the Clean Air Act in the case Whitman v. American Trucking Assn., Inc. (a copy of the decision can be found here). With respect to the how Congress uses terms in a statute, the Court refused to find an implicit authorization for EPA to consider something that has been "expressly granted" in other parts of the same statute. Congress must make a clear "textual commitment of authority to EPA" to consider such matters. The Court colorfully stated that Congress does not "alter the fundamental details of a regulatory scheme in vague terms or ancillary provisions - it does not, one might say, hide elephants in mouseholes." To the Court "modest words" do not provide such immense power to change statutory requirements. Furthermore, the Court would not twist the concept of ambiguity on a "highly significant issue" because the Court considered it implausible that Congress would delegate such a matter to an agency. For proper delegation to take place, Congress must confer decision making authority on agencies clearly, with intelligible principles and "the degree of agency discretion that is acceptable varies according to the scope of the power congressionally conferred." An agency goes "over the edge of reasonable interpretation" when it tries to use one part of the statute to render "utterly inoperative" a separate part of the statute. In what would seem to be particularly relevant to an argument for use of waiver authority, the Court pointed out that an agency "may not construe the statute in a way that completely nullifies textually applicable provisions meant to limit its discretion." The Court made note of the fact that a statutory "plan reaching so far into the future was not enacted to be abandoned the next time the EPA" reviewed it.
Whitman v. American Trucking Assn., Inc. would appear to be particularly instructive here because the Clean Air Act also contains other waiver provisions for transportation fuel requirements, most notably those for oxygenated fuels. These provisions can be found in the same part of the Act that houses the RFS. They provide authority to waive oxygenate requirements if EPA determines that there is an "inadequate domestic supply of, or distribution capacity for, oxygenated gasoline meeting the requirements." (emphasis added) Simply put, if Congress wanted EPA to consider distribution capacity (i.e. the blend wall) it would have said so. Congress clearly knew how to provide such authority because it did so for oxygenated fuels in the same part of the statute. Congress did not, however, include the same phrase ("or distribution capacity for") in the RFS waiver provision, and that would seem to be a strong indication that the blend wall is outside EPA's waiver authority.
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