Challenges To EPA's Clean-Air Authority Continue

March 5, 2001
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

About the Author

EHS Today Staff

EHS Today's editorial staff includes:

Dave Blanchard, Editor-in-Chief: During his career Dave has led the editorial management of many of Endeavor Business Media's best-known brands, including IndustryWeekEHS Today, Material Handling & LogisticsLogistics Today, Supply Chain Technology News, and Business Finance. In addition, he serves as senior content director of the annual Safety Leadership Conference. With over 30 years of B2B media experience, Dave literally wrote the book on supply chain management, Supply Chain Management Best Practices (John Wiley & Sons, 2021), which has been translated into several languages and is currently in its third edition. He is a frequent speaker and moderator at major trade shows and conferences, and has won numerous awards for writing and editing. He is a voting member of the jury of the Logistics Hall of Fame, and is a graduate of Northern Illinois University.

Adrienne Selko, Senior Editor: In addition to her roles with EHS Today and the Safety Leadership Conference, Adrienne is also a senior editor at IndustryWeek and has written about many topics, with her current focus on workforce development strategies. She is also a senior editor at Material Handling & Logistics. Previously she was in corporate communications at a medical manufacturing company as well as a large regional bank. She is the author of Do I Have to Wear Garlic Around My Neck?, which made the Cleveland Plain Dealer's best sellers list.

Nicole Stempak, Managing Editor:  Nicole Stempak is managing editor of EHS Today and conference content manager of the Safety Leadership Conference.

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