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U.S. Supreme Court to hear industry challenges to EPA clean air standards

graphic

In this story:

The cost of compliance

Specifics of the 1997 standards

The government's contentions

The industry's arguments

RELATED STORIES, SITES



WASHINGTON (CNN) -- The U.S. Supreme Court on Election Day hears arguments in a dispute between the Clinton administration and a legion of industry groups over the latest smog and soot standards designed to protect millions of Americans from developing or exacerbating respiratory illnesses.

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Browner v. American Trucking Associations (99-1257)

American Trucking Associations v. Browner (99-1426)
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The court on November 7 hears oral arguments back-to-back in two cases that take aim at 1997 Environmental Protection Agency standards limiting the amount of the pollutants in outdoor air. The EPA estimates the standards would help 125 million Americans breathe easier and prevent hundreds of thousands of premature deaths.

In Browner v. American Trucking Associations business and industry groups and three states argue that the standards should be set aside because the EPA does not have the constitutional authority to regulate air quality, according to legal filings. Industry lawyers contend that responsibility rests with Congress, not an executive agency like the EPA.

In American Trucking Associations v. Browner, the same groups argue that when setting air-quality standards, the EPA should consider the impact on the financial health of the economy because businesses must spend billions of dollars in compliance costs, court papers show.

The Supreme Court is being asked to determine whether Congress violated the so-called "nondelegation" principle derived from the Constitution and whether the EPA should factor in business' economic concerns during the standards-setting process.

The nation's highest court accepted both cases earlier this year, agreeing to review last year's rulings by the Washington, D.C. Circuit Court of Appeals, which remanded the 1997 standards to the EPA for further consideration. Bypassing trial courts, industry groups filed lawsuits in the D.C. circuit shortly after the EPA announced the tougher smog and soot standards in July 1997.

"These standards are among the most important public health initiatives of our time. If they go into effect, they will prevent thousands of premature deaths a year, tens of thousands of hospitalizations and millions of missed days of school," said Howard Fox, a Washington lawyer representing the American Lung Association, which joined the cases on the government's side.

The cost of compliance

Robert Gasaway, a Washington attorney representing the ATA and another party in the case, the U.S. Chamber of Commerce, said complying with the two standards would cost businesses $60 billion a year.

Ordinarily, industry has 12 years to comply with an air-quality standard, which means businesses would have to spend $720 billion, which the White House's Council of Economic Advisers estimates as the size of Canada's gross national product, Gasaway said.

"We are asking the Supreme Court to set aside the revised standards, to go back to the standards in effect today, to tell the EPA that if they want to change the standards, they must do so through a rulemaking process that is not arbitrary," Gasaway said.

He and Gary Baise, environmental counsel for the Equipment Manufacturers Institute, which joined the ATA in the cases, said consumers would end up paying more for a range of products from electricity to automobiles if the standards take effect.

Businesses would face higher production costs because they would have to buy more expensive coal and other fuels, purchase new equipment and make widespread changes to the way they operate. Baise argued that the air has been getting cleaner since the Clean Air Act was passed 30 years ago and cancers and other ailments attributable to air pollution are on the decline.

Specifics of the 1997 standards

At issue are 1997 standards for ground-level ozone - smog -- and "particulate matter" --soot. The EPA revised existing standards after numerous studies proved that stricter limits were needed to better protect public health, according to legal filings.

EPA Administrator Carol Browner and other agency officials set the ozone standard at 0.08 parts per million over an eight-hour period, down from 0.12 parts per million per hour, according to Ron White, an assistant vice president for the American Lung Association, which joined the cases on the government's side.

The particulate matter standard limited the size of soot particles to 2.5 microns -- 20 times thinner than a human hair -- down from 10 microns, White said.

The standards are scheduled to take effect in a few years after the EPA holds public hearings and states complete implementation plans that must win the EPA's approval. The EPA regulates smog, soot and other pollutants like sulfur dioxide under its National Ambient Air Quality Standards program, or NAAQS, court papers show.

Smog and soot are caused in large measure by polluted emissions from industrial sources like chemical factories and coal-burning utility plants. Exhaust fumes from automobiles, particularly gas-guzzling sports utility vehicles, and emissions from lawn mowers and other common household appliances also are culprits, White said. Smog occurs when the various pollutants bake in the sunlight, Baise said.

The Clean Air Act says the EPA must adopt the standards, but states must work out the details of how to improve air quality, Baise said. States typically target industrial pollution, requiring businesses to clean up emissions by burning cleaner coal, purchasing expensive equipment and making other operational changes, which add to the production costs, he said.

The government's contentions

The EPA and the U.S. Department of Justice, supported by New Jersey and Massachusetts, argue the 1997 standards should be left intact because they are important to public health and were adopted in a constitutionally proper manner.

Lawyers said in court filings and interviews Congress did not violate the "nondelegation" principle the high court has derived from Articles I-III of the Constitution, which spell out the separation of powers between the legislative, executive and judicial branches of the government. The powers of one branch should not be delegated to another without good reason under that principle, according to various lawyers in the matter.

The government said the D.C. circuit court wrongly agreed with industry groups that regulating air pollution is Congress' job, not the EPA's. In a May 1999 decision, the court ruled 2-1 that Congress did not provide detailed "intelligible principles" to justify why EPA was best suited to regulate air pollution.

Government lawyers argued Congress does not have to provide such a level of regulatory detail under prior high court rulings. Congress cannot perform its functions in an increasingly complex society unless it delegates duties to executive agencies like the EPA, they argued.

"The nondelegation doctrine does not require, however, that Congress dictate every detail of a regulatory program," the government wrote, rejecting the D.C. court's 2-1 ruling that "Congress may rely on the other branches to make rules that carry out its will."

Government lawyers argued that the Clean Air Act did give the EPA detailed guidance as to how to set air-quality standards. The 280-page act "prescribes the legal standard EPA is to apply, factors that EPA is to consider, a body of experts that EPA is to consult, and procedures that EPA must follow," they wrote.

The government also argued that Section 109 of the Clean Air Act orders the EPA to set air-quality standards based on the "latest scientific knowledge" on "all identifiable effects on public health or welfare." Nowhere in the law did Congress ask the EPA to consider how much business and industry would have to spend to comply with the regulations, the government contended.

The industry's arguments

Industry groups acknowledge in court filings that the Supreme Court for decades has approved "broad delegations" of legislative authority. However, such delegations are "problematic" when an agency's regulations "drastically affect the whole economy," they argued.

Industry lawyers also accuse the EPA of setting standards arbitrarily, leaving affected parties to guess why one number is better than another. That, the industry argues, also violates the "intelligible principles" doctrine.

The D.C. Circuit agreed last year and remanded the two standards to the EPA for further consideration. "The EPA merely asserted that the Clean Air Act provides an intelligible principle; it failed ... to state that principle," according to the majority opinion. "What is it?"

Finally, industry lawyers argue that the EPA cannot pass air-quality regulations with narrow considerations of public health alone. Because increased business costs affect all Americans in the pocketbook, ignoring the economic implications is shortsighted, they argue.

"When Congress said protect public health, they did not protect public health by putting on blinders but by considering all the implications of the standards that you set," Gasaway said. "All we are asking for is when EPA sets public health standards, they take into account all factors."



RELATED STORIES:
EPA report shows drop in major U.S. air pollutants
August 8, 2000
Chevron agrees to $7 million Clean Air settlement
August 23, 2000
Smog spells invisible damage for crops
June 27, 2000

RELATED SITES:
American Trucking Associations
Environmental Protection Agency
U.S. Supreme Court
Supreme Court of the United States
FindLaw Supreme Court Center
Legal Information Institute: Supreme Court Collection - Cornell University
On the Docket 2000-2001
The Supreme Court Historical Society
Jurist Guide to the Supreme Court - University of Pittsburgh
History of the Federal Judiciary


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