- The Washington Times - Wednesday, February 28, 2001

The Supreme Court yesterday stunned big business by ruling unanimously that federal law doesn't allow the Environmental Protection Agency to consider expense to industry when it sets clean-air standards.

"The EPA may not consider implementation costs in setting" permissible pollution levels, the court said.

The 9-0 opinion was authored by Justice Antonin Scalia, who expressed concern at the November hearing, asking if the EPA "has to take into account whether it's going to bring us back to the Stone Age."

His opinion rejecting the most rigorous challenge to the Clean Air Act in its 30-year history said the legal and constitutional answers appear to be "no."

But the court also said regulators may consider cost factors when deciding when health risks are sufficiently small to make exceptions.

The U.S. Chamber of Commerce which led the fight against zealous rule-making "with no scientifically proven benefit to health" estimates that implementing a challenged rule on ozone emissions alone will cost $720 billion. Backers of tough regulation said the chamber tried to eviscerate the law.

The high court sent remaining issues in the case back to the U.S. Court of Appeals for the D.C. Circuit to assure that EPA reaches a lawful and "reasonable interpretation" of ozone standards and enforcement policies.

"We have never demanded … that statutes provide a determinate criterion for saying how much of the regulated harm is too much," Justice Scalia wrote, saying the Clean Air Act "unambiguously bars cost considerations … and thus ends the matter for us as well as the EPA."

While all the justices agreed on the outcome, some had different reasoning on parts of the decision, including Justice Stephen G. Breyer, who contended from the start that the law never forced a choice between healthy people and a healthy economy.

"Preindustrial society was not a very healthy society. Hence a standard demanding the return of the Stone Age would not prove requisite to protect the public health," Justice Breyer wrote in a concurring opinion.

Health organizations declared victory while advocates for business and industry saw an opportunity to fight another day in the lower courts on ozone enforcement. The EPA had no immediate comment.

"This decision is a victory for the Clean Air Act and for the health of the American people," said American Lung Association leader John R. Garrison, who welcomed affirmation of the principle that costs not limit health standards.

"The Clean Air Act has always been a public health statute and the Supreme Court reaffirmed that today," Mr. Garrison said.

"The Supreme Court's historic decision confirms … that EPA's new standards to limit the pollution levels of smog and soot were based on sound science, sound policy and a sound reading of the law," said Vickie Patton of Environmental Defense Fund.

"It looks like it's a big victory for clean air," said Frank O'Donnell of the Clear Air Trust. "The Supreme Court has agreed with the fundamental principle that the Clean Air Act is designed to protect people's health without regard to cost."

Even the National Chamber Litigation Center (NCLC), whose attorney Edward Warren argued the case against the government, professed satisfaction with the ruling, despite losing on the claims of cost considerations and unconstitutional delegation of powers by Congress.

"We're pleased with this decision because the ozone standards can't be implemented until the case goes back to the Court of Appeals to decide if the EPA acted arbitrarily and capriciously in setting the ozone standard," said Robin S. Conrad, the NCLC's senior vice president.

"We had an EPA administrator who said she did not have to explain the numbers she used. She pulled them out of thin air," Miss Conrad said, referring to former EPA chief Carol Browner. When the Bush administration came into office, the case was renamed Whitman vs. American Trucking Associations, although EPA Administrator Christine Todd Whitman took no part in the case.

Mr. Warren had a more limited view, saying, "We're no worse off than we've been all along … but we didn't win. That's disappointing to me."

"I think this case means business as usual for the EPA. This question of costs is a defeat for industry, a serious setback," said M. Reed Hopper of the Pacific Legal Foundation in Sacramento, Calif., which filed a friend of the court brief supporting American Trucking Associations.

"We could still see these regulations struck down on other grounds," Mr. Hopper said, predicting the lower court might rule against EPA on whether its decision was "arbitrary and capricious."

Beyond the cost factor, the court ruled that Congress did not unconstitutionally delegate its power to EPA, that the case was ripe for judgment by the appeals court and that EPA must finish the job properly.

The rules affect airborne soot and smoke from diesel trucks and power plants, as well as smog or ground-level ozone from cars, power plants, chemical plants and other sources.

The 1997 standards under attack limited ozone to 0.08 parts per million instead of 0.12 parts per million under the old requirement. States also were required to limit soot from power plants, cars and other sources to 2.5 microns, or 28 times smaller than the width of a human hair.

The industry side of the case was supported by three states, including Virginia, while Maryland joined a friend-of-the-court brief with eight other states supporting the clean-air rules.

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