- The Washington Times - Wednesday, November 8, 2000

The Clinton administration's top courtroom lawyer assured the Supreme Court yesterday the Environmental Protection Agency mandate to curb auto and truck pollution at any cost won't drive the nation "into the Stone Age."
"You seem to be trying to reassure us we won't be without automobiles in the country … but now you seem to be saying you can't assure that," Justice Sandra Day O'Connor told Solicitor General Seth P. Waxman.
The high-stakes case pits industry against Congress' power to expand regulation of pollution without regard to an estimated $50 billion a year cost and the loss of jobs.
The law doesn't require us "to take our society to zero," Mr. Waxman told the court, insisting Congress had constitutional authority to give EPA power to consider only the effect on public health when setting emission standards.
"On the other hand, some people say we're going to go back to the Stone Age, which was very unhealthy for some people," Justice Stephen G. Breyer said during a debate otherwise laden with obscure acronyms that bordered on what he called "fuzzy science."
"It's hard to know what costs will be with technology that doesn't yet exist," Justice Breyer said.
Mr. Waxman said the Clean Air Act would never "get to zero" on standards for ozone and soot, "because you don't have to get to zero to achieve the results the law mandates."
The solicitor general personally argued two cases as he led the federal effort to overturn a 1999 decision by the U.S. Circuit Court for D.C. blocking enforcement of air standards imposed in 1997.
Defending the lower court ruling were the American Trucking Associations and the U.S. Chamber of Commerce, which said that EPA estimates a $720 billion cost for businesses to comply with ozone standards alone.
"If EPA can issue revised standards, God help us," Justice Antonin Scalia said yesterday, asking if "when EPA changes [the standards] it has to consider if it's going to take us back to the Stone Age."
"This interpretation of the statute makes no sense from any perspective," said Edward W. Warren, a D.C. appeals lawyer representing the ATA and the Chamber.
He said industry can't live with standards that don't consider the economics of public health.
"We have lived with it for 20 years," replied Chief Justice William H. Rehnquist who was unusually quiet during the extraordinary two-hour hearing.
"I've listened to a lot of vague language from you and I don't understand what it is that you're saying," Justice O'Connor told Mr. Warren.
"This is the way you consider what's best for the public, by taking economic interests into account," he replied. "We're talking about what Benjamin Franklin called prudential algebra."
Mr. Waxman discounted scare talk, saying EPA cannot set standards at or below background levels and never has seen a need to ban internal combustion engines, the type used in most cars and trucks.
The solicitor general said the Clean Air Act lets EPA consider only health effects by pollutants that are adverse and not trivial.
"They have to be medically significant to a sufficient population to create a public health effect," he said during Justice Scalia's extended but unfruitful inquiry into how EPA Administrator Carol M. Browner decides where to draw the line.
EPA may only take into account a pollutant's effects in the air that people breathe, said Mr. Waxman, who listed the range of effects from death and emergency room admission to slight coughs.
"A cough is not like a death, obviously," Justice Scalia said. "Is there anything that does not count?"
Mr. Waxman said EPA would not consider a hypothetical risk or "some effect on the biology of a cell."
"This is something Congress can't fix without rewriting the statute," Mr. Warren said in asking the justices to rule for the first in 65 years that Congress unconstitutionally delegated too much power to a federal agency.
While questions of Congress' power to delegate and EPA's authority to ignore economic factors are in two cases that will be decided separately, they were linked yesterday.
Justice Scalia said Mr. Warren's main argument to consider cost in setting secondary standards undermined his position that Congress may not delegate authority to set such standards.
In the same tone of cross-examination, when Mr. Waxman mentioned EPA's reports to Congress on issues other than public health effects, Justice O'Connor asked, "Why would Congress want that advice on economic and social effects if it didn't want the EPA to consider those effects?"

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