Clean-Air Authority Of EPA Is Upheld

By Charles Lane
Wednesday, February 28, 2001

The Supreme Court yesterday unanimously upheld the Environmental Protection Agency's authority to set new and tougher clean air standards without first considering the potential economic impact on industry, a major victory for federal efforts to control pollution.

Rebuffing a forceful industry argument that the EPA regulations would impose billions of dollars in unjustified new costs, the court held that the language of the 1970 Clean Air Act clearly requires the EPA to consider only expected public health benefits when deciding acceptable levels of ozone and soot in the atmosphere.

The Clean Air Act "unambiguously bars cost considerations from the [clean-air standard]-setting process, and thus ends the matter for us as well as the EPA," the court said in an opinion by Justice Antonin Scalia.

The court signaled that it has no interest in lending its support to any broader effort by business and conservative activists to dismantle federal regulation, rejecting the industry argument that the EPA had effectively taken over Congress's lawmaking power in violation of the Constitution. This appeal to the long-dormant "nondelegation doctrine," if accepted by the court, could have thrown the authority of virtually all federal agencies into doubt.

Noting that the court had repeatedly upheld "sweeping regulatory schemes" in past cases bearing on Congress's delegation of authority to federal agencies, Scalia wrote that the EPA's clean-air rulemaking "fits comfortably within the scope permitted" by those precedents.

EPA Administrator Christine Todd Whitman called the decision "a solid endorsement of EPA's efforts to protect the health of millions of Americans from the dangers of air pollution." Last year, as governor of New Jersey, Whitman authorized her state to intervene in the litigation on the side of the Clinton administration EPA.

In setting the new standards, the EPA said the latest scientific studies indicated that they were necessary to protect 125 million people from adverse health effects and would result in the prevention of 15,000 premature deaths and 350,000 cases of aggravated asthma.

However, the court ruled, on narrow statutory grounds, that while the EPA had authority to set the new rules, its policy for implementing them with regard to ground-level ozone -- commonly known as smog -- violated 1990 amendments to the Clean Air Act.

The justices held that the EPA had unreasonably tried to give heavily polluted parts of the country less time to clean up their air than Congress had intended, a conclusion urged on the court in briefs submitted by three industrial states -- Ohio, Michigan and West Virginia.

That means the actual enforcement of that part of the EPA's new clean-air standards remains in legal limbo until the agency can work out a new policy consistent with the court's holding.

In an otherwise subdued reaction to the ruling, the American Trucking Associations, which brought the initial case against the EPA, called this part of the court's decision "a significant development" in its favor. Industry groups said they will continue to press other legal arguments against the new regulations in the Court of Appeals for the District of Columbia Circuit, to which the Supreme Court assigned the remaining issues in the case.

Still, the decision is a clear setback for industry, which had at one point seemed on the verge of a breakthrough in its long-running legal and lobbying battle to require the EPA to make cost an explicit factor in its pollution-control decisions.

The case came to the Supreme Court after a three-judge panel of the D.C. Circuit issued a divided ruling in 1999. The panel agreed with the EPA that the Clean Air Act did not permit it to use cost-benefit analysis but concurred with the trucking industry that the agency's regulations had been drafted according to no "intelligible principle," in violation of the "nondelegation doctrine" -- which was last invoked by the Supreme Court to strike down a piece of New Deal legislation in 1935.

Both parties appealed, and the Supreme Court agreed to rule on both issues, raising the prospect that a conservative-led court would overturn the approach to environmental regulation charted by a Democratic administration.

In recent years, the court's conservative majority has repeatedly used long-dormant constitutional doctrine to strike down parts of laws passed by Congress.

Citing Congress's lack of authority to legislate in areas that do not substantially affect interstate commerce, the court had ruled that laws banning the possession of firearms near schools and giving female victims of violence the right to sue their attackers in federal court are unconstitutional. Citing state sovereign immunity, the court has held that states may not be sued in federal court for alleged discrimination against older state employees or, in a case decided just last week, disabled state workers.

In this case, even a decision that had avoided the constitutional nondelegation issue but held that the Clean Air Act requires cost-benefit analysis would have been a major revision of congressional enactment.

Scalia has been a full participant in all of those recent decisions. Yet his opinion yesterday, which was replete with deferential references to the intent of Congress, and specifically expressed agreement with the Clinton administration's position on the nondelegation issue, did not even come close to taking the court on such a tack.

Industry's nondelegation claim had always been "a long shot," conceded Robin S. Conrad, vice president of the U.S. Chamber of Commerce's Litigation Center.

Only Justice Clarence Thomas expressed sympathy for reviving the nondelegation doctrine, saying in a concurring opinion that "on a future day" he "would be willing to address the question of whether our delegation jurisprudence has strayed too far from our Founders' understanding of separation of powers."

And the only expression of sympathy for the industry's argument on the cost-benefit issue came in the concurring opinion of Justice Stephen G. Breyer, usually thought of as one of the court's liberals.

"Other things being equal, we should read silences or ambiguities in the language of regulatory statutes as permitting, not forbidding" cost-benefit analysis, Breyer wrote, adding, however, that he did not see such ambiguities in the language of the Clean Air Act itself.

© 2001 The Washington Post Company