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News Analysis

The lawyers debated over ozone and soot, but the markets saw NOx as the "smoking gun."
Fortnightly Magazine - January 1 2001

has the freedom to take us all the way down to deindustrialization, as the Court of Appeals said."

Certainly, that issue appeared to pique the interest of the Supreme Court justices, for they pressed Solicitor General Waxman, who argued the case for the EPA, on the matter. Conjecturing whether the EPA conceivably could outlaw the combustion engine, Associate Justice Sandra Day O'Connor asked, "What is there, though, that would suggest that EPA could not decide that with electric motor vehicles we could achieve a better standard and it would be better for health, and therefore, we are going to set a much lower standard?"

Emphasizing that the EPA would not set standards that would cripple any one industry, Waxman cited the evolution of tailpipe emissions standards for new cars. "The automobile industry stated publicly that it was impossible to meet those standards, and if it were possible, the companies would go bankrupt. As it turns out É the companies did develop the technology."

Yet the high court also repeatedly questioned Warren on what basis he reasoned that cost considerations are implicit in the term public health. "[EPA Administrator Carol Browner] surely has some latitude in defining [public health] since it isn't defined in the statute," Chief Justice William Rehnquist reasoned, challenging Warren.

The justices repeatedly returned to that theme, apparently unconvinced by Warren's definition of public health and noting that authors of the Clean Air Act had the opportunity to specifically include cost-benefit in its definition of public health, yet did not do so.

High Stakes for Federal Programs

As Rehnquist's comment indicates, the nature of the justices' questioning often transcended their ideological reputations. Associate Justice Antonin Scalia, also known for his conservative ideology, asked Warren, "Is $1,000 too much [to prevent] a cough, or $2,000, $3,000? Why does it give you a standard simply to add economic effects to the thing?"

It's no wonder that in many cases questioning by the justices transcended their individual ideological reputations, because the ramifications of a nondelegation ruling conceivably could spill beyond the sphere of the EPA to virtually all other federal agencies, some observers say.

Certainly, those on the EPA side would have you believe that. "If they don't find the language in the Clean Air Act sufficiently clear É then it doesn't take any time at all to make a dozen or two dozen other major federal statutes that are also in serious question," says Susan Durbin, deputy attorney general in California and participant in the Supreme Court case.

Durbin cites as one example another energy law that has received a lot of attention in California lately: the Federal Power Act and its "just and reasonable rates" clause. "[That clause] is less clear," she says, going on to suggest that the ramifications of a nondelegation ruling would reach into areas as far-reaching as antitrust, consumer protection, and civil rights.

Eight-Hour vs. One-Hour Standard: Is That Clear?
Sorting it out at the high court.

In the several years that have elapsed since the Environmental Protection Agency issued its more rigorous ozone "eight-hour standard," much