- The Washington Times - Sunday, March 4, 2001

Some have been urging a tax cut larger than the $1.6 trillion urged by President Bush. The case for a larger tax cut was strengthened this week when the Supreme Court upheld Environmental Protection Agency air pollution regulations junk-science-powered rules estimated to cost Americans an estimated $100 billion per year.

The EPA rules issued in 1997 require that geographic regions meet stringent standards for airborne fine particulate matter (soot) and ground-level ozone (smog). Industry groups sued the EPA over the standards. A federal appellate court tossed out the standards in May 1999, citing a little-used constitutional doctrine called nondelegation.

The appellate court ruled the EPA unconstitutionally usurped legislative power reserved for Congress. The EPA appealed to the Supreme Court. Industry groups convinced the court also to review whether the EPA should have considered the cost in setting the standards.

The Supreme Court ruled the EPA's authority to issue the standards did not violate the Constitution and the Clean Air Act does not permit the EPA to consider costs in setting the standards.

In a sop to industry, the court ruled that EPA's plan for implementing the standards was illegal and the agency had to go back to the drawing board to devise a more reasonable implementation plan.

From practical and legal perspectives, the opinion authored by Justice Antonin Scalia isn't a surprise. Regardless of the merits of nondelegation, accepting the argument might cause chaos by jeopardizing many other law-like federal agency rules. The Clean Air Act does not expressly permit the EPA to consider costs.

But the key flaw of the EPA standards involves something not examined by the courts: EPA's lousy science.

The EPA relied on a single, feeble statistical study purporting to associate air pollution with premature death. The study had no data on how much air pollution even a single study subject was exposed to. Moreover, the study's methodology was inherently incapable of scientifically linking air pollution with premature death.

When Congress asked the EPA to produce the study data for independent scientific review, the agency brazenly refused stating, "We do not believe … there is a useful purpose for [obtaining] the underlying data." EPA eventually coughed up the data for review, but months after the standards were finalized. The review was hardly "independent" as the reviewing organization was half-funded by EPA.

Congress was so outraged it enacted a law too late for the EPA standards requiring that scientific data used to support federal policy must be made available to the public through the Freedom of Information Act.

It is once again time for Congress to act.

The Clean Air Act should be amended to require EPA to use only solid science as the basis for regulation. There must be timely and adequate means for challenging the agency's scientific data and reasoning.

It's widely known that EPA science is suspect. An independent, blue-ribbon review panel concluded in 1992 that EPA often adjusts science to fit policy. Under the Clinton administration, the quality of the EPA's science was politicized even more.

Worse, the EPA's political science is virtually untouchable in court. Most EPA actions can be overturned by a court only if proven to be arbitrary and capricious. This legal standard is so easy to meet for EPA that virtually any excuse offered by the agency no matter how lame meets the standard.

In contrast, worker safety rules issued by the Occupational Safety and Health Administration must be supported by "substantial evidence." Courts have torpedoed many junk science-fueled OSHA regulatory efforts based on this standard. OSHA is even somewhat intimidated by the standard.

Unfortunately, it won't be easy opening up the Clean Air Act.

The environment is a throw-away issue for many Republicans reluctant to spend their limited political capital fighting eco-political correctness. New EPA administrator Christine Todd Whitman fully embraced the Supreme Court ruling. Mr. Bush may be uncomfortable revisiting a law his father is proud of helping to shape.

But forcing the EPA to use sound science isn't the only reason action is necessary.

The EPA estimates that between 1970 and 1990, $523 billion was spent to reduce U.S. air pollution. Pollutant emissions declined dramatically sulfur dioxide by 40 percent, nitrogen oxides by 30 percent, volatile organic compounds by 45 percent, carbon monoxide by 50 percent and particulate matter by 75 percent.

Pollutant emissions have since declined even more and the public's health is not in jeopardy. We're making solid progress without breaking the bank. But the Supreme Court just gave EPA the green light to quadruple this level of spending on just a few air pollutants.

Flaky and secret science aside, is this how Congress and the Bush administration want us to spend our tax cut?

Steven J. Milloy is the publisher of JunkScience.com and an adjunct scholar at the Cato Institute.

Steven J. Milloy is the publisher of JunkScience.com and an adjunct scholar at the Cato Institute.


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