norml23 - Page 71
Page 71
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overly broad delegation. Thus, the court may find that action
unauthorized as a statutory matter, instead of holding that the statute
itself is invatJd. Tribe, supra, p. 289; and see NationaJ Cable Ass'n
v. United States, 41S U.S. 336 (1974.)o
_n the case at bar, such a saving interpretation would find that
the failure of the administrator of the DEA to abide by procedures to
insure that the classifications remain (a) fair (in the sense that the
penalties associated with the various schedules reflect the relative
harmfulness/benefit of each drug); (b) rational (in the sense that
developments in scientific knowledge are reflected in reclassifica-
tion); and (c) lawful (in the sense that objective criteria guide and
restrict the administrator's otherwise unfettered discretion to
determine the fairness and rationality questions) would justify a
finding that defendant's rights have been violated by improper
administrative action, rather than by invalid Congressional
legislation. In the instant case, the DEA has failed to abide by the
very rules Congress estabJished to maintain fairness and rationaJity.
C. The Administrative Law RevoJution and Industrial Union
Department Vo American Petroleum Institute
1. Although the full impact of the Supreme Court's decision in
Industrial Union Department will not be apparent for some time to come,
it is beyond doubt that this decision (which invalidated an OSHA
regulation restricting worker exposure to benzene, a carcinogen)
constitutes a benchmark in the ten-year revolution which has
characterized the Jaw governing judicial review of federa} agency
rule_making. Mr. Justice Stevens, writing for the four-justice
pluraJity, concluded that notwithstanding a 184 page written appendix
summarizing the scientific evidence showing benzene's potential
cancer-causing effects, the Agency had proved only that some kind of
regulation limiting worker exposure was appropriate. But in the absence
of a threshold show;ng of the significance of the risk posed by any
particular _evel of benzene exposure, the particui_r standard selected
by OSHA was invalid:
If the government [is] correct in arguing that
[the statutes do not] require that the risk from a
toxic substance be quantified sufficiently to
enable the Secretary to characterize it as
significant in an understandable way, the statute
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