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Court Voids EPA Air-Pollution Rules


Court Voids EPA Air-Pollution Rules
Friday May 14, 1999
By H. JOSEF HEBERT

WASHINGTON (AP) - A federal appeals court today set aside new air quality standards issued by the Environmental Protection Agency in 1997, handing the Clinton administration a major environmental defeat.

The three-judge panel, acting on a lawsuit by a number of industry groups, said the section of the 1990 Clean Air Act on which the EPA relied in issuing the air pollution rules amounted to "an unconstitutional delegation of legislative power."

The EPA is almost certain to appeal the case, although the agency had no immediate comment.

The decision was a major victory for a broad range of industry groups from trucking companies to electric utilities, which had fought the tougher air quality rules as too expensive and ill-conceived.

The regulations, issued in July 1997, imposed much tougher health standards for smog-causing ozone and opened the way for the first time for regulation of microscopic soot. The tighter standards overnight put hundreds of counties in violation of federal air quality standards.

At the time, Vice President Al Gore called the tougher requirements "the most significant steps in a generation to protect the American people, especially our children, from air pollution."

The opinion was handed down by the U.S. Court of Appeals for the District of Columbia on a lawsuit filed by the American Trucking Associations and a number of other industry groups.

Judges David S. Tatel, Stephen F. Williams and Douglas H. Ginsburg wrote separate parts of the opinion, although Tatel filed a dissent on a portion of the findings.

The rule was one of the most contentious environmental issues facing the EPA.

The regulation dramatically tightened federal air quality requirements for ozone, commonly known as smog, with an aim to provide better protection of children, the elderly and populations with respiratory problems.

It also for the first time required states to regulate microscopic particles, or soot, down to 2.5 microns, or 28 times smaller than the width of a human hair. States and cities were given until 2003 to comply with the soot standard, but the new ozone requirements went into effect immediately.

WASHINGTON POST STORY:

http://www.washingtonpost.com/wp-srv/WPlate/1999-05/15/031l-051599-idx.html

New Air Pollution Limits Blocked Appeal Judges' Ruling May Curb Agencies' Powers

By Joby Warrick and Bill McAllister Washington Post Staff Writers Saturday, May 15, 1999; Page A01

A U.S. appeals court yesterday threw the brakes on new federal air quality regulations for smog and soot, saying the Clinton administration overstepped its constitutional authority in adopting standards aimed at easing the suffering of millions of Americans with asthma and lung disease.

The 2-1 ruling was a stunning reversal for one of the signature environmental achievements of the Clinton presidency, and a resounding victory for a coalition of industries and local governments that had spent millions of dollars fighting the regulations in Congress and in the courts.

The decision by the U.S. Court of Appeals panel in Washington appeared to some to raise questions about the future of federal regulation by suggesting that Congress, not the executive branch, is predominantly responsible for writing the nation's environmental laws.

"If it is saying that EPA can't do it that way, then other agencies can't do it that way, either," said Robin Conrad, senior vice president of the U.S. Chamber of Commerce's National Chamber Litigation Center.

In adopting the guidelines two years ago, the Environmental Protection Agency had failed to show that additional health protections were justified, the judges wrote in their decision, ruling that the agency had acted on legal assumptions that amounted to "unconstitutional delegations of legislative power." The court remanded the regulations to the EPA for redrafting and ordered the agency to explain why its rule-making process was justified under the Constitution.

But the decision drew a sharp dissent from one of the judges. Circuit Judge David S. Tatel, a Clinton appointee, said the ruling ignored decades of legal and judicial tradition in interpreting the federal Clean Air Act, including the "last half-century of Supreme Court jurisprudence." The majority opinion was written by Circuit Judges Stephen F. Williams and Douglas H. Ginsburg, both appointees of President Ronald Reagan.

The decision sent shock waves through the White House and the EPA, where government lawyers pondered the implications of a ruling that appeared to sweep away years of court rulings and legislative approval of pollution standards. An EPA spokesman said the agency would appeal the ruling, which he called one of the "most disturbing" it has faced.

"It's a very, very surprising and very troubling decision," said the senior official, speaking on the condition he not be named.

White House spokesman Joe Lockhart said the administration was "deeply disappointed" but would press ahead with efforts to further reduce air pollution. "We will continue to do everything within our power to ensure that the American people are adequately protected against smog, soot and other harmful air pollutants," he said.

The EPA regulations were not scheduled to take effect in most areas for at least another four years, after a period of stepped-up monitoring of airborne pollutants. The standards would tighten controls on ground-level ozone, a gas that contributes to smog, and set new limits on microscopic airborne particles called particulates. Both pollutants are byproducts of industrial and automotive combustion, and can worsen asthma and other lung ailments suffered by tens of millions of Americans.

Opponents had argued that the regulations were too costly and lacked a solid scientific basis.

The legal core of the ruling, several analysts said, was the judges' application of the "nondelegation" doctrine, which essentially holds that certain issues are too important for Congress to delegate to agencies.

Bill Frick, general counsel to the American Petroleum Institute, which opposes the standards, said he had not seen a court apply the doctrine in such a way since the New Deal era.

"It's breathing life into that old doctrine. It really goes to the question of the powers that the agency has," Frick said.

But environmental groups blasted the ruling as a dangerous setback to health and environmental protection. Gregory Whetstone, legislative director of the Natural Resources Defense Council, said the court's interpretation of the government's regulatory authority "reeks of old 1930s case law."

"If that rationale is to govern, not only these standards but decades of air standards are at risk," he said.

Frank O'Donnell of the Clean Air Trust predicted that millions would suffer unless the ruling is overturned on appeal.

"For now, it means that millions of Americans could be exposed to unhealthful levels of air for longer periods of time," O'Donnell said. "This could [also] unsettle the plans by states to meet the new standard -- unfortunate because most states had become comfortable with the process.

Copyright 1999 The Washington Post Company

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