EPA’s Hopes of Reviving Tougher Smog Rules Rest With Justices

WASHINGTON — The Supreme Court is expected to decide soon, possibly by Monday, whether to hear the Clinton administration’s plea to revive its strict anti-smog standards, rules that were struck down suddenly last year by a pro-business appeals court.

Lawyers on both sides of the issue have called the dispute over air quality standards the biggest environmental case in years.

At issue is whether the Environmental Protection Agency can seek roughly a 10% reduction in air pollution over the next decade.

Lowering Ozone Levels, Cutting Particulates

The agency hopes to achieve that goal by lowering the acceptable levels of ozone in the air and setting a new rule for particulate matter, the tiny pieces of soot that can lodge in lungs.

These National Ambient Air Quality Standards are the starting points for regulating air pollution. Once the standards are set, states must devise ways to bring their cities and counties into compliance.

For once, Southern California is not at the center of this air pollution battle because Congress gave the region more time to comply with existing clean air rules.

But the EPA decided to go ahead with forcing the rest of the country to go further in cleaning up the air.

The stricter standards will “provide new health protections to 125 million Americans, including 35 million children,” EPA Administrator Carol Browner said in 1997 in announcing the new regulations. Her agency estimated that as many as 15,000 lives would be saved annually by the cleaner air and that hundreds of thousands of cases of asthma and respiratory ailments would be avoided.

But the anti-pollution rules were fiercely opposed by a broad coalition of businesses, from auto and steel makers to truckers and power plant operators. They said it would cost $46 billion a year to comply with the new standards, and they questioned whether the improvement in air would have much effect on health.

Some business lawyers even faulted the EPA for ignoring the health benefits of ozone. They argued that removing ozone from the air would lead to increases in skin cancer.

After losing out in a battle with Clinton administration officials, the business advocates turned to the courts and succeeded in blocking the standards.

The American Trucking Assn. and the U.S. Chamber of Commerce sued and found a friendly forum in the 10-member U.S. Court of Appeals for the District of Columbia.

This appeals court has been known for its intense ideological fights, and its judges usually split along party lines. Under presidents Reagan and Bush, it served as the launching pad for conservative nominees to the Supreme Court, including Justices Antonin Scalia and Clarence Thomas, as well as Judge Robert H. Bork, whose nomination was defeated in the Senate, and Douglas H. Ginsburg, who withdrew after news reports of his past marijuana use. The same court also was home to then-Judge Kenneth W. Starr, who gained fame after leaving.

President Clinton found his first Supreme Court nominee there, Justice Ruth Bader Ginsburg.

When the clean-air rules came before a three-judge panel last year, they were struck down on a 2-1 vote. Reagan appointees, Judges Stephen Williams and Ginsburg, formed the majority. Judge David Tatel, a Clinton appointee, dissented.

The outcome was less surprising to lawyers than the court’s novel opinion issued May 14, 1999. The two Reagan judges called the Clean Air Act “an unconstitutional delegation of legislative power” to a regulatory agency.

The so-called non-delegation doctrine was a favorite of conservative justices of the Supreme Court during the 1930s. They said then that the heavily Democratic Congress was giving away too much of its lawmaking power to President Franklin D. Roosevelt and his executive agencies. They struck down several New Deal laws on this theory.

But the high court reversed course in 1937 and, in the six decades since then, has not struck down a law as an “unconstitutional delegation” of power.

Clinton administration lawyers urged the full 10-member appeals court to reconsider the decision, and five judges voted to do so. They were the four Democratic appointees and one prominent conservative, Judge Laurence H. Silberman. But the request failed because it takes a majority vote to rehear a case.

In January, administration Solicitor Gen. Seth Waxman asked the Supreme Court to take up the case (Browner vs. American Trucking Assn., 99-1257). He called the lower court ruling “a radical departure from settled law” and said that loss of the clean air standards “unnecessarily prolongs the exposure of millions of Americans to unhealthy pollutant levels.”

Five other appeals have been filed in the same case from groups ranging from power companies to the American Lung Assn. The court is expected to act on the appeals soon, possibly by Monday or, if not, within another two weeks.

Coal-Burning Plants to Be Most Affected

If the justices turn down the appeals, the EPA will be forced to revise the standards. It is likely, however, that the court will take up the case and hear the dispute in the fall.

Lawyers said that the outcome is not likely to have much effect on Southern California. As one judge put it, “The agency need not wait for Los Angeles to achieve the old standard before requiring the rest of the country to move to the new one.”

If put into effect, the new rules would have an immediate effect in places where old power plants still burn coal and belch smoke. Ohio, Michigan and West Virginia joined the lawsuit challenging the new standards. At the same time, Eastern states that receive drifting pollution have sided with the administration. They include New York, New Jersey and Connecticut.

If the Supreme Court takes up the dispute, it is not likely to rule until next year. Business lawyers noted that, if Texas Gov. George W. Bush wins the presidential election, his administration could revise the air quality standards before putting them into effect.