In EPA case, court weighs power of agencies

Three years ago, the Environmental Protection Agency enacted tough air pollution standards to reduce the amount of soot and smog in the atmosphere.

Instead of ushering in an era of cleaner air, it triggered an avalanche of legal challenges by industry groups, complaining of costs of up to $150 billion a year. They question whether the US Constitution permits unelected bureaucrats to wield the kind of discretionary power that could, in theory, bring American industry to its knees.

In one of the most important cases of the year, the US Supreme Court today begins examining whether EPA Administrator Carol Browner usurped Congress's legislative powers when she used her broad discretion to set the new pollution limits under the federal Clean Air Act. The justices will also decide whether the EPA must consider economic and other factors in addition to health risks. The case sets the stage for what could become a major showdown over

over the power and primacy of federal regulatory agencies operating under broad and often ambiguous mandates from Congress.

"If the Supreme Court goes along with [a lower court's ruling that the EPA acted unconstitutionally], it will have repercussions far beyond the Clean Air Act and far beyond environmental legislation," says Jeff Gleason, head of the air-pollution project at the Southern Environmental Law Center in Charlottesville, Va. "It is going to affect the ability of agencies to effectively implement legislation, regardless of the nature of that legislation."

Critics of the power of federal regulators say that Congress has granted too much discretion to these executive branch agencies, and the agencies themselves have sometimes used that discretion to expand their power beyond limits authorized by the Constitution.

"The lack of clear congressional standards limiting EPA, coupled with the agency's unfettered discretion to establish its own guideposts, ensures that there is no adequate check on EPA's decisionmaking," writes Laurence Tribe, a Harvard Law School professor who filed a friend-of-the-court brief on behalf of General Electric. "The balance of authority contemplated by the separation of powers does not exist."

Lawyers for the EPA disagree. They say Congress imposed enough limitations on EPA discretion to pass constitutional muster. "An executive branch agency, acting pursuant to congressional direction, is entitled to assess the available evidence and make a reasoned judgment on the proper regulatory standard," writes Seth Waxman, US solicitor general, in his brief for the EPA.

At issue in the case is how the EPA sets new air-pollution standards. Under the Clean Air Act, Congress instructed it to use the most up-to-date scientific information available to set limits that will best protect public health.

The problem with trying to regulate smog and soot exclusively from a health perspective, experts say, is that both pollutants pose public health risks at every level of emission.

Critics of the regulatory process say that if the agency doesn't take other factors, such as the cost of industry compliance, into account, the agency is left with unlimited discretion to set standards arbitrarily.

In ruling against the EPA last year, a federal appeals court in Washington, D.C., found that the agency was "free to pick any point between zero and a hair below ... London's Killer Fog," a 1952 concentration of air pollution that is said to have contributed to 4,000 deaths over four days.

In discussing the limits of agency discretion, the appeals court cited the nondelegation doctrine, a principle of constitutional law largely unused since the 1930s. It says Congress may not transfer its power to make laws to executive agencies.

To avoid violating the doctrine, an agency must demonstrate that its decisions are made on a reasoned basis flowing from a congressional mandate and aren't simply arbitrary policy decisions made by agency personnel in lieu of congressional action.

Part of the problem in the EPA case is Browner's willingness to exert agency authority, says Marci Hamilton, a visiting law professor at New York University who filed a friend-of-the-court brief. "This is the most overt expression by an [EPA] administrator saying, 'I've got the power. I make the law.' "

Some analysts suggest the high court may resolve the case without reaching the constitutional issue, by ruling that Browner and the EPA (and several lower courts) read the Clean Air Act too narrowly by ruling out cost-benefit considerations when setting pollution limits.

The EPA and many environmental groups oppose this approach. They say the Clean Air Act was designed in part to insulate the agency from excessive industry pressures at the front end of the regulatory process. Congress deliberately excluded consideration of cost-benefit analysis at the limit-setting phase to ensure that only public health concerns would be considered.

"The fact that it may cost more to clean up air pollution doesn't make it less of a health risk," says Mr. Gleason.

Cost-benefit analysis becomes an important consideration later in the regulatory process, when states begin to work with local industries and others to achieve the levels set by the EPA. At the point of implementation, it is possible to make more accurate estimates of the costs to industry. And if the costs are excessive, analysts say, industry has the ability to go to Congress to seek a waiver from the compliance schedule.

(c) Copyright 2000. The Christian Science Publishing Society