Waiting for Cleaner Air? Keep Holding Your Breath

The Supreme Court handed environmentalists a major victory this week. Well, nearly. The real story is that the justices hit a triple, but we’re not home yet.

In an eagerly awaited decision, the court upheld the Environmental Protection Agency’s tough new standards for air pollution under the federal Clean Air Act. With a unanimity that has been rare in recent years, all nine justices agreed with the EPA’s view that costs may not be considered when establishing air standards necessary to protect the public health. The court also unanimously reversed the lower court’s conclusion that the act was overly vague, thus giving the agency lawmaking power that the Constitution grants solely to Congress.

The court, though, made one final move: It invalidated the EPA’s implementation plan for ozone, essentially delaying the day when that new air standard will take effect. So what at first looks like a happy ending for the EPA, the environment and the public health may in fact be just the beginning.

The court’s decision is important because it allows the EPA to make protection of the public health its top priority when establishing air pollution standards. This is exactly what Congress intended when it passed the act in 1970, and it makes sense.

More good news. The court upheld the law against the constitutional challenge that Congress’ delegation of authority was too broad (what scholars call the “non-delegation” doctrine). The Clean Air Act is one of the most specific statutes ever passed. More important, the court’s decision on this point has serious implications beyond this case. Had the court invalidated the standards on this ground, it would have called into constitutional doubt innumerable federal statutes that are much more vaguely worded than the Clean Air Act. The Supreme Court wisely avoided wreaking this kind of havoc.

Now for the bad news. The justices sent the case back to the conservative appeals court, which may still invalidate the standards on other grounds. Even if they don’t, by striking down the EPA’s plan to implement the new standard for ozone, the high court snatched defeat from the jaws of victory. A failure to implement the new standards is as bad as no standards at all. This is why the court’s decision is so problematic and why industry and some states, which have resisted these new regulations tooth and nail, have reason to celebrate.

To be sure, the agency’s implementation plan for the new ozone standard was not perfect. The EPA struggled mightily to reconcile conflicting provisions of the law. The problem is squaring Congress’ specific timetables for complying with the old ozone standard with the need to now comply with a tougher one. The EPA’s interpretation was sensible and should have been given a chance to work. Instead, the court rejected it, and the agency must now go back to the drawing board.

It could be years until the EPA comes up with a new plan, and the Bush administration may take a different tack. Another lawsuit will inevitably follow. Industry, for which delay is as good as no new standard at all, can be expected to fight until the last dog dies. So when legal scholars and pundits claim that the Supreme Court delivered a home run to environmentalists, don’t be fooled. The game isn’t over yet.