Congress Opens the Courthouse Doors: Statutory Changes to Judicial Review Under the Clean Air Act

Abstract

Intervention by the federal courts in regulatory policymaking has increased markedly, in both quantity and level of intrusiveness, over the last 40 years. Scholarly commentators have concluded that this level of intervention is not appropriate. This suggests a question: Why are the courts so involved in regulatory policymaking? This article answers that question by examining congressional motivation to increase the rights of interested parties to take their policy battles into court. By analyzing three sets of amendment to the Clean Air Act, I show that members of Congress strategically manipulate statutory rules governing the role of courts in regulatory policymaking to help their political supporters and to advance their own policy goals. Thus, a primary explanation of the increased role of the judiciary in regulatory policymaking is that this increase has served the goals of members of Congress.