News Analysis

 

 

The lawyers debated over ozone and soot, but the markets saw NO _x as the "smoking gun."

November 2000 may be remembered for ambiguous election results that went straight to the U.S. Supreme Court, but it was also a banner month for debate in the realm of air quality regulation, a dispute that ended up in the very same place.

The Supreme Court heard oral arguments on Nov. 7 in two companion cases involving national ambient air quality standards, and the scope of authority at the Environmental Protection Agency to regulate without considering the price of its actions. To its credit, the EPA had regrouped following unfavorable rulings from the lower courts, moving full-steam ahead with its previous, less-stringent standard. But the high court's ruling, once declared, will have ramifications sure to be felt across the country.

How Many Parts per Million? At What Cost?

At stake in one of the cases is whether the EPA overstepped its authority in tightening its standards for both ozone (from a maximum 0.12 parts per million over one hour to 0.08 ppm over eight hours) and for particulate matter, or soot (from an acceptable size of 10 micrometers to 2.5 micrometers in diameter).

The industry side, led by the American Trucking Associations, contends that the EPA's standard setting violates the so-called "nondelegation doctrine," a rarely referenced doctrine that prohibits the unconstitutional delegation of legislative power. In other words, ATA argues that only Congress can implement such far-reaching standards.

The companion case raises the question of whether the EPA, when setting standards, must factor the cost of implementation into its equation, as the industry side contends. EPA hasn't done so previously; it says that cost is not considered until the implementation stage, when states take on the responsibility of lowering ozone levels in designated "non-attainment areas."

The American Trucking Associations, meanwhile, argues that not only is it logical that cost be weighed against benefit, but that the authors of the Clean Air Act intended for cost to be considered when the EPA sets standards. The association bases this assertion largely on the fact that the Act charges the EPA with protecting the health, as opposed to health. Cost considerations are implicit in the term , the industry side contends, whereas had lawmakers intended for cost considerations to be excluded, authors of the Clean Air Act would have referred to health-a term which, American Trucking points out, was used in the failed Senate version of the original bill. (Back in 1970 it was the House version that passed.)

The bottom line, the industry side says, is that if the EPA doesn't have to consider cost, it has virtually no boundaries to reign it in. Why not just set the standard at zero for optimum health benefits, the reasoning goes.

"[T]he one thing [EPA] doesn't have discretion to do is to take all those countervailing factors [such as cost] off the table," attorney Edward W. Warren, representing the industry side, told the Supreme Court. "Because ... what that means is that the agency