Clean Air Act’s Framework Scrutinized by High Court

One of the most significant pollution-control issues of recent years--for industry groups and environmentalists alike--reached a critical stage Tuesday, as the Supreme Court heard oral arguments in two cases that call into question the basic structure of federal regulation under the 1970 Clean Air Act.

The cases pit the trucking industry against the Environmental Protection Agency over the issue of whether the EPA unconstitutionally acted like a legislature when it set new, tougher emission standards for certain air pollutants on the basis of public health considerations, without considering economic costs or other factors.

If the court holds that the EPA rules violated the seldom-invoked “nondelegation doctrine,” under which administrative agencies may not be given functions that properly belong to Congress, the ramifications could extend well beyond the EPA to call into question the authority of nearly all federal regulatory agencies.

Even if the court shies away from such a sweeping ruling, it could still use this case to require EPA to employ cost-benefit analyses in setting standards for emissions, something Congress has repeatedly declined to do on its own.

In July 1997, the EPA revised its standards to require states to reduce the level of ozone in the air from 0.12 parts per million to 0.08 ppm, and, in addition, to more tightly regulate soot particles.

The agency asserted that the new rules would save an estimated 15,000 lives per year. But the trucking industry sued, claiming that the new rules would achieve these benefits at a huge cost to industry.

Last year, the U.S. Court of Appeals for the District of Columbia Circuit told the EPA it would have to rewrite its rules, holding that the EPA had given no clear reason why it set the standards where it did, when public health would have been protected at a lower level. This failure to act according to an “intelligible principle,” the court said, violated the nondelegation doctrine.

At the same time, however, the District of Columbia Circuit held that the Clean Air Act does authorize the EPA to set emission standards without first weighing the health benefits of its actions against their costs to industry and others.

The EPA appealed the first holding to the Supreme Court, contending that the Clean Air Act actually gave very specific instructions that the agency should do just what it did.

The trucking industry appealed the second point, arguing that the Clean Air Act requires the EPA to conduct a cost-benefit analysis when it sets its air quality standards.

The dueling petitions gave rise to Tuesday’s unusual two-hour combined hearing on the mirror-image cases, Browner vs. American Trucking Assns. and American Trucking Assns. vs. Browner.

A decision is expected by the end of June.