The U.S. Environmental Protection Agency (EPA) has argued, in its briefs filed with the U.S. Supreme Court in Browner v. American Trucking Ass'n, that the decision of the D.C. Circuit² which stated that EPA should interpret the Clean Air Act (CAA) so as to avoid violation of the nondelegation doctrine is "novel," "unprecedented," "contrary to the purpose of the delegation doctrine," and without any "basis in [the Supreme] Court's precedents."³ In fact, however, it is EPA that has radically misread both the Court's application of the nondelegation principle and the lower court's adherence to clear precedent. All that the lower court held is that EPA's interpretations of the CAA cannot disregard the nondelegation doctrine.

EPA has acknowledged, as it must, that the nondelegation doctrine continues to be a viable principle underlying basic constitutional jurisprudence governing congressional grants of authority to administrative agencies. It cannot deny that both the Court and lower courts have adopted narrow readings of agency organic statutes where necessary to avoid constitutional invalidity under the nondelegation doctrine. Constitutional principles are frequently preserved by indirect means,⁴ but this less confrontational approach does not alter the importance or effect of the constitutional requirement.