EPA’s Strict Clean Air Rules Face Supreme Court Test

As Americans go to the polls Tuesday, the Supreme Court will take up an unusually important clean air case that could crimp the federal government’s power to combat pollution for several years.

As an environmental dispute, the case sounds familiar.

Business groups representing truckers, power plant operators and car dealers are chafing at the strict air-quality standards announced three years ago by the Clinton administration’s Environmental Protection Agency. If put into effect, these rules limiting smog and soot would cost businesses more than $46 billion a year, industry leaders argue.

Defending the rules, EPA officials and environmentalists say that 125 million Americans will breathe cleaner air if mandatory controls are added in scores of communities. Equally important, an estimated 350,000 children will not contract asthma and other lung ailments, they say.

But the election day argument in the high court is less about clean air than about who makes the laws. Its timing is coincidental.

Certainly, voters set the general direction for the government by electing a president and members of Congress. Together, legislators and the chief executive make the laws. But the precise rules and regulations that give a law its force are often decided many years later and largely by nonelected agency officials or judges.

Tuesday’s case poses the question of whether conservative judges should be empowered to block environmental rules issued by a liberal administration.

Most legal experts doubt that the high court will find the Clean Air Act unconstitutional, but they say that it may force the EPA to use a cost-benefit analysis when formulating regulations.

While industry and environmental leaders are looking to the Supreme Court to settle the issue, voters may well have the last word Tuesday. That is because, after the court rules in the spring, the regulations will be sent back to the EPA before they are put into effect.

GOP Platform Takes Costs Into Account

If Texas Gov. George W. Bush wins the White House, he could appoint a more business-friendly EPA chief and ease the air pollution standards. The Republican Party platform says that “legitimate economic interests” should be taken into account in making environmental rules.

However, if Vice President Al Gore is elected, his EPA officials are likely to press for the strict air quality standards, even if the Supreme Court says that costs must be considered. The Democratic Party platform promises “new smog and soot standards so that children with asthma and the elderly would be able to live better lives.”

The rules--and the process for making them--were thrown into question last year when the U.S. Court of Appeals in Washington stunned environmentalists by striking down the 1997 air quality standards on a 2-1 vote.

Judges Stephen F. Williams and Douglas Ginsburg, both Reagan appointees, said that the Clean Air Act may be unconstitutional because it gives too much power to the EPA. In vetoing the rules, the judges said that they amount to “an unconstitutional delegation of legislative power.”

Dissenting Judge David S. Tatel, a Clinton appointee, said that his colleagues had no grounds to “second-guess” Congress or the agency. During the 1980s, the Supreme Court said that judges usually should uphold regulatory decisions made by federal agencies, he noted.

The majority’s conclusion also raised eyebrows because it revived a discredited doctrine from the mid-1930s. Then, the conservative Supreme Court struck down several of President Franklin D. Roosevelt’s New Deal programs on grounds that the Democratic Congress had given too much power to his regulators. The Constitution says that “all legislative power . . . shall be invested in a Congress,” and the 1930s-era justices said that Congress was not free to give its lawmaking power to executive agencies.

But almost as quickly as it was announced, the so-called non-delegation doctrine died. It was impractical, and probably impossible, for Congress to make thousands of daily regulatory decisions for the federal government, from deciding who should get broadcast licenses to the rates for electric power to fees at national parks.

Since the 1930s, the Supreme Court has upheld regulatory laws so long as Congress sets guidelines.

In the Clean Air Act of 1970, Congress told the EPA administrator to set national air quality standards, based on scientific evidence, that are, “in the judgment of the administrator, . . . requisite to protect the public health.”

Once these pollution ceilings are set, the states are required to come up with plans to meet them. The law spoke only of “public health” and said nothing about taking costs into account.

In 1977 and 1990, Congress reenacted the law and told the EPA to revise and update its air quality standards every five years. Lawmakers were sensitive to complaints about cost as well as the difficulty of cleaning the air. In the 1990 amendments, they gave the Los Angeles area 20 additional years to meet the standards.

When the standards came up for review in the mid-1990s, EPA Administrator Carol Browner, a protege of Gore’s, pressed for stricter smog and soot ceilings. She pointed to new studies that showed children and outdoor workers were harmed more than previously believed if they were exposed for years to ozone and tiny soot particles.

Correct Standard Remains Elusive

She conceded that there was no precisely correct standard. In 1997 rules, she lowered the ozone limit from 0.09 parts per million to 0.08 parts per million--about a 10% reduction. She also set a new ceiling for the soot produced by diesel combustion.

The American Trucking Assn., the U.S. Chamber of Commerce and other business groups went to court to challenge the rules. “We say they would make a huge difference in cost, and there’s no scientific justification that says it’s worth the cost,” said Robin S. Conrad, lawyer for the Chamber of Commerce.

The two conservative appellate judges who sided with the business groups nonetheless said that they could not force the EPA to use a cost-benefit analysis. This was foreclosed by the law and an earlier court ruling.

But when the appeals reached the Supreme Court, the justices voted to hear both issues. Is the Clean Air Act unconstitutional? And must the EPA calculate the costs before it issues new regulations? Two separate cases (Browner vs. American Trucking, 99-1257, and American Trucking vs. Browner, 99-1426) will be heard Tuesday.

For industry, a victory on either issue would be a regulatory landmark. “This case may change the way our laws are written or it may make agencies more circumspect about issuing regulations,” said M. Reed Hopper of the Pacific Legal Foundation, who filed a brief on behalf of the California Chamber of Commerce.

Environmentalists said that the law is being hijacked by business and activist conservative judges.

“For 30 years, it’s been a bedrock principle of the Clean Air Act that the amount of pollution allowed in the air should depend on how it affects the health of our children and the elderly when they breathe,” said Vickie Patton, a lawyer for Environmental Defense. Siding with the truckers in this case “would tip the scales away from public health and toward the economic concerns of major polluters.”

California’s air pollution experts said that they are closely following the case, even though the state will not be forced to comply immediately with the proposed 1997 standards.

“It would be a huge change in air pollution control if we switch from public health to the cost to industry,” said Susan L. Durbin, a deputy state attorney general, whose brief on behalf of California and nine other states supported the EPA. If the federal air quality standards are eased, “there would be enormous pressure to relax the state standards,” Durbin said.