- The Washington Times - Friday, March 2, 2001

Only in Washington could the idea that cost is irrelevant be taken seriously. This week, however, the U.S. Supreme court unanimously decreed that with respect to a key emissions regulation, the Environmental Protection Agency (EPA) didn't have to consider the costs of its implementation.

The high court said the law requires only consideration of "public health." Justice Antonin Scalia wrote that the language of the original 1970 Clean Air Act "unambiguously bars cost considerations from (being used as a part of) the (regulatory) process and thus ends the matter for us as well as the EPA." Thus the fault here lies with Congress not the high court, which declined an invitation to judicial activism to rewrite the statute.

Still, it's worth noting that EPA does not have a free hand when it comes to issuing regulations. Lost in the cheers over the ruling from environmentalists and hoots from industry and sound-science groups is language that Mr. Scalia mentions in his majority opinion and that Justice Stephen Breyer cites in his concurring opinion. The pertinent section of the clean air statute, Mr. Scalia says, "we interpret as requiring the EPA to set air quality standards at the level that is 'requisite' that is, not lower or higher than is necessary to protect the public health with an adequate margin of safety." That raises a question, and perhaps grounds for legal challenge, as to which Clean Air Act regulations are actually requisite for the protection of public health.

Justice Breyer elaborates on the issue. The court's interpretation of the clean air statute does not require the agency to eliminate every risk, no matter how slight, at any cost, however large it may be, he says. It does not require that the world be free of all risk-taking, which Justice Breyer says is an impossible and even "undesirable" goal. It is certainly within the discretion of the agency administrator to avoid issuing regulations "ruinous" to industry.

Given that the high court has remanded the case to the appeals court, it will be interesting to see if anyone challenges the agency's regulations on the basis that they aren't requisite for public health. Just because the agency has discretion to avoid issuing rules unjustifiable on health grounds, doesn't mean it won't.

In the late 1990s, EPA unilaterally altered existing standards defining "unhealthful" air downward. Overnight, areas that had been considered to have excellent or perfectly healthful air quality were designated "non-attainment" areas and subject to new, increasingly stringent anti-pollution measures that included restrictions on the use of outdoor barbecues and power equipment, such as lawn mowers. It did so notwithstanding the fact that air quality today nationwide is better than at any time since the 1970s. And all of this was done on the basis of a theoretical benefit to a relative handful of severe asthmatics, the elderly, and others with cardiopulmonary and respiratory distress. It also did so notwithstanding the unfortunate reality that the elderly and those afflicted with severe pulmonary and respiratory disease are not likely to breathe any easier on 90-100 degree July days, no matter what EPA says or does.

Many members of Congress may have hoped the courts would strike down what they themselves made possible in passing the clean air statute. This court ruling doesn't completely close the door to that possibility. Still, it would be better if Congress hadn't made the court fight necessary in the first place.

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