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U.S. Supreme Court hears clean air cases regarding smog and soot standards


WASHINGTON (CNN) -- Wading into an environmental battle with potential implications for millions of Americans, the U.S. Supreme Court on Tuesday heard arguments in two cases over the Environmental Protection Agency's latest smog and soot standards.

In Browner v. American Trucking Associations, industry lawyer Edward Warren said the Constitution's "nondelegation principle" was violated when the EPA assumed sweeping regulatory powers over air quality.

In American Trucking Associations v. Browner, he said the EPA must take business' compliance into account while deciding what is an existing standard and what is not.

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A preview of U.S. Supreme Court arguments in clean air case, CNN's Charles Bierbauer reports (November 7, 2000)

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Browner v. American Trucking Associations (99-1257)

American Trucking Associations v. Browner (99-1426)
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U.S. Solicitor General Seth Waxman, the Clinton administration's attorney specializing in Supreme Court litigation, argued in both cases that Congress is fully within bounds under the Constitution and prior high court rulings to give the EPA such power.

He also said the Clean Air Act of 1970 requires the EPA to set standards based on public health considerations alone, and to worry about the costs to businesses while deciding how to implement the standards state by state.

Industry groups want the court to uphold last year's decisions by the District of Columbia Court of Appeals remanding the standards to the EPA on constitutional grounds and for the agency's failure to clearly state why one numerical standard is better than another in protecting public health.

The cases involve the EPA's 1997 standards for ground-level ozone, or smog, and particulate matter, or soot.

EPA Administrator Carol Browner set the ozone standard at 0.08 parts per million over an eight-hour period, down from 0.12 parts per million per hour set in 1987, according to court papers. The soot standard was lowered from 10 microns to 2.5 microns, the documents show. The standards would be implemented in a few years after public hearings, provided the high court approves them.

The government has said the standards will benefit 125 million Americans and prevent thousands of premature deaths a year due to illnesses caused or exacerbated by the two pollutants.

Industry's arguments against the standards

It "simply cannot be true" that Congress intended for the EPA to undertake such an important legislative function as protecting public health, especially when the agency does not consider the standards' impact on the economy, Warren said in court Tuesday.

When the smog and soot standards take effect in a few years, businesses will have to shell out $60 billion a year, he said.

Lawyers said in prior interviews businesses will have to buy cleaner-burning fuel and install new equipment to meet unnecessarily stricter standards for the two pollutants.

The "nondelegation" principle derives from Articles I-III of the Constitution, which spell out the separation of powers between the legislative, executive and judicial branches of the government, court papers show.

He said that the EPA protects "personal health, not public health," adding that since 1955 experts have defined the term "public health" as a "comprehensive, cost-included" analysis. Yet, the EPA fails to take into account costs while setting standards, Warren argued.

Warren also noted that the Clean Air Act does not define public health and industry groups believe Congress meant for the EPA to consider the impact the standards will have on the economy.

"What we are saying is what the agency can't do in the name of public health is take countervailing factors off the table," he said. "There has to be some common sense brought to bear."

Justice David Souter said the ATA was confusing the issues in the case in saying the EPA violated the Constitution by failing to consider costs at the outset. How does that "make or break" the statute, he asked.

He said a valid argument might be that the EPA sets the standards arbitrarily, noting that the industry did not present that argument as the core issue.

Industry arguments

The Clean Air Act clearly states that the EPA must set the standards "requisite" to protecting public health and select one number over another based on the "latest scientific evidence," Waxman said.

By deferring to the EPA, allowing the agency to promulgate air-quality standards and asking the agency to periodically revise those standards, Congress made a "fundamental policy choice," Waxman argued.

"The Constitution does not require more," he said, adding that Congress and the EPA working together to protect public health is an example of "permissible cooperation" between two branches of government.

Waxman also said the EPA does not seek to eliminate all pollution - some pollution is inevitable in the modern age - but to reduce the amount of smog and soot.

"The EPA has never found or set a level necessary to eliminate the internal combustion engine," he said, adding that the delegation of regulatory authority to the EPA is an example of "permissible cooperation" between the two branches of government.

Justice Antonin Scalia said he was not sure why 0.08 parts per million and 2.5 microns were acceptable standards, when the EPA could theoretically ban all pollution.

Waxman said which standard to select is EPA Administrator Carol Browner's judgment call. He added that Browner bases her decisions on the recommendation of an independent panel of scientists and on the results of studies conducted over the years of the number of deaths and hospitalizations caused by bad air and other medical issues.

Waxman said the EPA does take costs into account -- but while determining how to implement the standards, not while adopting them.

Justice Sandra Day O'Connor asked why not consider costs at the outset. Waxman said the Clean Air Act explicitly states that the EPA must "only" take public health and welfare into account, not the impact on businesses.

U.S. Supreme Court to hear industry challenges to EPA clean air standards
November 3, 2000
Chevron agrees to $7 million Clean Air settlement
August 23, 2000
Smog spells invisible damage for crops
June 27, 2000

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