The Rules Still Count : Federal judge makes a good ruling on importance of environmental regulations

You need not question the good intentions of the President’s Council on Competitiveness, which is headed by Vice President Dan Quayle, to challenge the council’s effect. Such would seem to be the implication of a recent decision in the U.S. Court of Appeals for the District of Columbia.

The ruling, by Judge Karen L. Henderson, ordered the Environmental Protection Agency to reconsider a 1990 decision permitting the incineration of car batteries. The EPA had earlier planned to ban such incineration as a way of keeping toxic lead out of the atmosphere, but it dropped the ban, just days before putting it into effect, under pressure from the council. The Natural Resources Defense Council, a private environmental group, then sued to have the ban restored.

Judge Henderson’s decision does not question the right of the Quayle panel to make its views known or of an agency such as the EPA to take those views into account. But the decision does imply that if bending regulations to accommodate considerations of competitiveness goes so far as to compromise the prior legal mandate of a regulatory agency, the accommodation may be subject to legal challenge. A regulatory agency under pressure from the Council on Competitiveness must therefore ask whether resisting the pressure now is a less costly alternative than defending against a lawsuit later.

No one can dispute that unwise regulation has a negative impact on competitiveness. But government need not make, and has not made, economic competitiveness its top priority across the board. Unfair employment practices might well be more competitive than fair ones. Environmentally unsound manufacturing practices might well produce a product that could undersell the competition. Congress, as it deliberates and legislates, decides on a case-by- case basis which priority it will choose. The Council on Competitiveness cannot, after the fact, revise those priorities with total impunity.

If it attempts to do so, then, as Henderson’s decision shows, the revision may invite legal challenge.