Opinion: EPA should regulate air quality

By dusting off an old legal doctrine that hadn't seen the light of day since 1935, a federal appellate court stripped the Environmental Protection Agency's power to regulate air quality. Now it's up to the U.S. Supreme Court to give it back.

Browner vs. American Trucking Associations, argued before the court Nov. 7, asks whether the Clean Air Act, a law passed in 1970, provides so little guidance to the EPA on how to set pollution standards that Congress impermissibly delegated legislative authority to the executive branch. In May 1999, the District of Columbia Circuit of the U.S. Court of Appeals invalidated that part of the Clean Air Act requiring the EPA to set air quality standards at levels "requisite to protect the public health." The court ruled Congress had unconstitutionally delegated its power in violation of the separation of powers.

But this "nondelegation" doctrine hasn't been used by the Supreme Court to invalidate a federal statute in 65 years. In the meantime, the court has routinely approved the power of executive branch officials and agencies to interpret relatively vague instructions from Congress, including the attorney general's authority to regulate drugs that pose an "imminent hazard to public safety," and the Federal Power Commission's authority to determine "just and reasonable" rates.

Over the years as our nation has become more complex, the court has come to recognize that Congress is simply not equipped to micromanage the thousands of matters under federal regulation. Its 535 members have neither the time nor the expertise to make scientific judgments about subjects such as acceptable levels of airborne particles, so it leaves the determination to the EPA. Members of Congress, of course, can always rein in regulatory agencies and have frequently subjected the Clean Air Act to oversight hearings.

Contrary to the claims of industry challengers, the Clean Air Act substantially limits the authority of the EPA by telling it to base air-quality standards on "the latest scientific knowledge." The agency takes that direction seriously.

From reports of the grueling two-hour oral argument, it appeared the justices were highly skeptical that the Clean Air Act was so vague as to be an unconstitutional delegation of power. Apparently, the justices were equally unmoved by industry arguments that the statute requires the EPA to conduct a cost-benefit analysis when setting air-quality criteria. Justice Antonin Scalia noted that adding such a requirement does nothing to limit the EPA's discretion. "If you're going to stop a cough, is $1,000 too much?" he asked."It's just as indeterminate."

Thanks to the Clean Air Act and the work of the EPA, our nation doesn't look like those smog-bound countries of Eastern Europe in which the environment was sacrificed in the name of industrial production. But the EPA, like all regulatory bodies, has to be given the flexibility to respond to changing science while carrying out its mandate. The court should make that clear.

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