Yeshiva University, Cardozo School of Law LARC @ Cardozo Law Articles Faculty 2001 Reading the Clean Air Act After Brown & Williamson Michael Herz Benjamin N. Cardozo School of Law, [email protected] Follow this and additional works at: https://larc.cardozo.yu.edu/faculty-articles Part of the Law Commons Recommended Citation Michael Herz, Reading the Clean Air Act After Brown & Williamson, 31 Environmental Law Reporter 10151 (2001). Available at: https://larc.cardozo.yu.edu/faculty-articles/355 This Article is brought to you for free and open access by the Faculty at LARC @ Cardozo Law. It has been accepted for inclusion in Articles by an authorized administrator of LARC @ Cardozo Law. For more information, please contact [email protected], [email protected]. 2-2001 ELR 31 ELR 10151 NEWS&ANALYSIS ARTICLES Reading the Clean Air Act After Brown & Williamson by Michael Herz1 I. Introduction late "drugs" and "devices. "7 Throughout almost its entire history, the FDA took the position that tobacco cigarettes Smoking is not considered an environmental issue. Con­ were neither a drug nor a device and that it lacked authority gress has kept the U.S. Environmental Protection Agency to regulate them. In 1996, it flipped. Asserting that nicotine (EPA) out of the tobacco regulation game by excluding to­ is a "drug," it issued regulations prohibiting the sale ofciga­ bacco from coverage under the statute otherwise most ap­ rettes to minors and regulating other activities that were propriate for that use, the Toxic Substances Control Act, 2 likely to promote or facilitate smoking among minors. 8 The and EPA's halting steps toward regulation of secondhand regulations were challenged by tobacco manufacturers, re­ smoke have hit a judicial roadblock. 3 Nonetheless, tobacco tailers, and advertisers on the ground that the statute simply lurks on the fringes of environmental law and policy-not does not extend to tobacco products. The U.S. District Court least because, as the single most significant threat to public for the Middle District of North Carolina upheld the regula­ health, it provides a benchmark against which environmen­ tions9; the U.S. Court of Appeals for the Fourth Circuit re­ tal risks are often measured (usually by those arguing versed10; and the U.S. Supreme Court affirmed, concluding against regulating those risks). Now federal tobacco regula­ that the FFDCA does not grant the FDA jurisdiction over tion has led to a judicial decision of potentially great signifi­ these products. 11 cance for environmental lawyers: Food & Drug Administra­ tion v. Brown & Williamson Tobacco Corp. 4 Though not an In an opinion by Justice O'Connor, the five-Justice "environmental case" as such, Brown & Williamson holds majority (Chief Justice Rehnquist and Justices O'Connor, important lessons for environmental law and litigation. Scalia, Kennedy, and Thomas) concluded that Congress had After a brief description of the opinions in the case, I precluded FDA regulation of tobacco. Although acknowl­ will comment on two aspects of the decision of particular edging that the agency's position rested on a plausible read­ ing of the actual text of the statute, the majority emphasized importance to environmental lawyers: the Court's handling 12 of Chevron, U.S.A., Inc. v. Natural Resources Defense the importance of context in statutory interpretation and Council, Inc. 5 and its reliance on post-enactment develop­ examined the statute as a whole and the overall legislative ments in interpreting a statute. scheme. It made two basic points. First, as it read the statute, ifthe FDA had jurisdiction over tobacco, it would have no Il. The Court's Decision in Brown & Williamson choice but to ban tobacco products, but Congress had ex­ pressly precluded such a step. Therefore, tobacco products The Federal Food, Drug, and Cosmetic Act (FFDCA)6 au­ "simply do not fit" within the FFDCA scheme and the thorizes the Food and Drug Administration (FDA) to regu- agency's reading of the statute was nonsensical.13 Second, 1. 1be author is currently Visiting Professor of Law at the New York 6. 21 u.s.c. §§301-395. University School of Law. He is a professor at the Cardozo School of Law, 7. Id. §§32l(g)-(h), 393. Yeshiva University, where he has taught since 1988. Previously, he was an attorney for the Environmental Defense Fund and a law clerk for Justice 8. Food & Drug Admin., Regulations Restricting the Sale and Byron White. He is a graduate of Swarthmore College and the University Distribution of Cigarettes and Smokeless Tobacco to Protect Children and of Chicago Law School. Adolescents, 42 Fed. Reg. 44396 (Aug. 28, 1996). 2. 15 U.S.C. §§2601-2692, ELR STAT. TSCA §§2-412 (Toxic 9. Coyne Beahm, Inc. v. Food & Drug Admin., 996 F. Supp. 1374 Substances Control Act). See id. §2602(2)(A)(iii), ELR STAT. TSCA (M.D.N.C. 1997). §3(2)(A)(iii) (defining "chemical substance" to exclude "tobacco or any tobacco product"). 10. Brown & Williamson Tobacco Corp. v. Food & Drug Admin., 153 F.3d 155 (4th Cir. 1999). 3. See Flue-Cured Tobacco Coop. Stabilization Corp. v. EPA, 4 F. Supp. 2d 435, 28 ELR 21445 (M.D.N.C. 1998) (vacating large 11. Food & Drug Admin. v. Brown & Williamson Tobacco Corp., 120 S. portions of a U.S. Environmental Protection Agency (EPA) report on Ct. 1291 (2000). passive smoking). 12. Id. at 1300-01. 4. 120 S. Ct. 1291 (2000). 13. Id. at 1301-06. 5. 467 U.S. 837, 14 ELR 20507 (1984). 31 ELR 10152 ENVIRONMENTAL LAW REPORTER 2-2001 the Court emphasized Congress' actions, and inaction, re­ regulate tobacco without banning it, thereby avoiding the garding the regulation oftobacco since 1965-a period long majority's conundrum that the only permissible regulatory after the passage of the FFDCA. It noted Congress' repeated action was in fact impermissible. 18 Second, he expressed consideration and rejection of bills that would have given grave doubts about relying on later congressional inaction the FDA jurisdiction over tobacco, its "specific intent" in or enactments to understand existing statutes. Emphasizing six pieces oflegislation directly addressing tobacco, and the that Congress had never directly come to grips with the fact that all such legislation was enacted against the back­ question of FDA authority, he observed that after the FDA ground ofand in reliance on the FD A's assertion that it could had asserted jurisdiction Congress considered but failed to not regulate tobacco. According to the majority, this added enact legislation to deny it such authority. Thus the legisla­ up to more than "simple inaction by Congress that purport­ tive record was, in Breyer's slightly peculiar phrase, "criti­ edly represents it acquiescence in an agency's position"; cally ambivalent."19 Finally, Justice Breyer argued that rather, through actual legislation, Congress had "effectively changes in available information-both as to the activities ratified the FDA's previous position."14 of the tobacco companies and as to scientific understand­ Finally, the majority turned to Chevron. As the first ing-along with a policy change accompanying a change of two sections of the opinion presaged, it declined to defer to presidential administration, amply justified the FDA's shift 20 the agency's interpretation, staying squarely in Chevron's in position. step one. It had two complementary reasons for doing so. Justice Breyer cited Chevron, but only in passing, First, for the reasons summarized above, it thought the stat­ and his arguments rest much more on the FFDCA itself than ute was clear and dispositive. Second, the Court was unwill­ on a pitch for deference. At times he uses the language and ing to treat whatever ambiguity there might be (and it was concepts of Chevron step two, asserting that the FDA's in­ unwilling to admit there was much) as an implicit delegation terpretation was not "unreasonable" and emphasizing the policymaking freedom and democratic accountability of the given the nature of the issue. It deemed it unlikely that Con­ 21 gress would have delegated such a momentous, politically agency. But much of the opinion is devoted to refuting the majority's interpretation of the Act directly and concluding charged, and consequential decision to the FDA, at least not that, correctly interpreted, the FFDCA itself grants the FDA without a clearer and more direct statement. 15 Relying on an the asserted authority. And Justice Breyer seems almost in­ idea generally associated with Justice Breyer, and citing an tentionally to eschew the "step one" and "step two" lan­ article by him, 16 the Court noted that whether Congress has guage and dichotomy. Ifone were to impose that vocabulary delegated decisionmaking authority to an agency turns in onto the opinion, one would say that Justice Breyer con­ part on the nature and importance of the issue; the more sig­ cluded: (a) that this was a Chevron step one case because the nificant the issue, the less likely that Congress has handed it statute gives the FDA authority to regulate tobacco, and to an agency. (b) that the statute is at most ambiguous and therefore, un­ Writing for the four dissenters-Justices Stevens, der step two, the Court had to defer to the agency's reason­ Souter, Ginsburg, and Breyer-Justice Breyer took the op­ able interpretation. 22 But that is not what Justice Breyer posite tack on each of the three parts of the majority's opin­ himself says. ion. He briefly made the point that the language and purpose of the FFDCA supported the FDA's assertion of jurisdio­ III. Understanding Brown & Williamson tion.17 This is hard to quarrel with, and the majority had not done so. Justice Breyer then turned to the majority's reasons The opinions in Brown & Williamson invite two sorts ofob­ for ignoring the natural reading of the statute.