Challenges To EPA's Clean-Air Authority Continue

One of the biggest challenges ever mounted against the Clean Air\r\nAct has failed, but the legal and political wrangling over EPA's\r\nstandard-setting authority is far from over.

One of the biggest challenges ever mounted against the Clean Air Act has failed, but the legal and political wrangling over EPA''s standard-setting authority is far from over.

The court ruled Feb. 27, that when issuing new regulations, EPA must only consider public health and safety and may not engage in the cost-benefit calculations a coalition of industry groups sought to introduce into the statute. The ruling also rejected the argument that Congress has unconstitutionally delegated too much power to EPA in setting clean-air standards.

However, the court sent back to the U.S. Court of Appeals for the District of Columbia the question of whether EPA''s ozone and particulate matter standards were "arbitrary and capricious."

"This is the real story, not the cost or delegation issues, but sending both ozone and particulate matter back to the court of appeals," said Robin Conrad, senior vice president of the National Chamber Litigation Center, legal arm of the U.S. Chamber of Commerce (USCC).

The court will determine if EPA''s regulations were rational in the first place. If the court finds EPA was unreasonable in setting these regulations, Conrad said, "that ends the matter."

The ozone rule faces a double hurdle because even if the court of appeals rules in EPA''s favor, the agency must explain that its implementation of the standard is reasonable. Conrad said the dispute here has to do with the deadlines EPA imposed for compliance.

What is at stake for manufacturers? Big bucks, says Jeff Marks, director of air quality for the National Association of Manufacturers (NAM).

"EPA estimates it would cost $47 billion each year to comply with the 1997 ozone and particulate regulations that are the subject of the litigation," according to Marks.

The ozone rule would have a more direct impact on manufacturers, requiring the installation of expensive pollution control equipment in non-attainment areas. The particulate matter regulation has more to do with power generation, and could make it very difficult to place new power plants or operate existing ones, Marks said.

The Chamber, which joined in the original suit, Whitman v. American Trucking Assns., promised to take the fight to Capitol Hill, adding a political weapon to its arsenal.

"While the Supreme Court ruled they cannot compel the EPA to consider the link between regulatory cost and regulatory benefit, the Congress can," said USCC President and CEO Thomas Donohue.

But Congressional support for such a move is uncertain and the Bush Administration is now on record as opposing the effort to force EPA to do a cost-benefit analysis when issuing new regulations.

EPA Administrator Christie Whitman welcomed the Supreme Court decision. In fact, last year, as governor of New Jersey, Whitman authorized her state to enter the litigation on the side of the Clinton administration EPA.

In her comment the day the decision was announced, Whitman showed her position on the Clean Air Act has not changed now that she runs EPA:

"The Supreme Court today issued a solid endorsement of EPA''s effort to protect the health of millions of Americans from the dangers of air pollution, and affirmed our constitutional authority to set these kinds of health protection standards in the future."

by James Nash

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