A court rebuke to EPA

May 24, 1999
The oil and gas industry should welcome a judicial rebuke that the U.S. Environmental Protection Agency received this month over aggressive regulation against air pollution.

The oil and gas industry should welcome a judicial rebuke that the U.S. Environmental Protection Agency received this month over aggressive regulation against air pollution.

On May 14, the U.S. Court of Appeals for the District of Columbia Circuit ruled that EPA overstepped its constitutional authority when it toughened standards for pollution by ozone and fine particles. The agency claimed in its July 1997 ruling to have evidence necessitating a lowering of airborne concentrations of ozone and a new standard for particles smaller than 2.5 micrometers in diameter. Suddenly, the economy faced new costs estimated by the President's Council of Economic Advisers at as much as $60 billion/year, and twice as many counties as before found themselves out of compliance with Clean Air Act pollution standards.

Legal setback

A legal setback to so costly a regulation, one widely regarded as unjustified by health concerns, deserves applause. The oil and gas industry should note, however, that the court didn't directly dispute the scientific justification for EPA's midcourse hiking of regulatory standards. Opponents of the 1997 move-and the oil and gas industry was by no means alone among them-had argued that EPA's own scientific advisory board questioned the need for new standards, especially with air pollution in overall decline. But the appeals court said the law didn't force the agency to act on such questions in the relevant instances. So the case is no pure triumph of science over aggressive governance. And the Supreme Court might eventually reverse the decision.

The ruling nevertheless represents a judicial yank on the reins of an agency that needs it. That's triumph enough.

The court remanded EPA's rules for ozone and fine particles under a judicial doctrine against delegation of legislative authority to federal regulators. It essentially said that EPA took such a broad view of its power that its air quality rules amounted to an unconstitutional delegation of that type.

In the case of ozone, the court said EPA couldn't impose a tighter standard while the original standard was still being implemented. If the ruling survives appeal, EPA will have to specify why the tougher standard would be reasonable in terms of public health.

"EPA does not have the authority, according to the court, to adopt a permissible ozone level that would ruin industry, just as it does not have the authority to do nothing at all," said Jan Amundson, general counsel for the National Association of Manufacturers. "Instead, it must take into account the actual health effects of ozone."

EPA also will have to reconsider its ruling for fine particles under the remand ruling, which vacated EPA's position on coarse particulates-those up to 10 micrometers in diameter. The fine-particle rule might later be vacated, the court said.

The complex ruling thus leaves EPA some room to maneuver. But it delivers a strong warning to control its urges. And it comes at a good time.

Other lurches

This isn't the agency's first judicial loss. Its attempt to mandate ethanol in reformulated gasoline didn't pass legal muster, for example. And the rule on ozone and small particles wasn't EPA's only regulatory lurch-or even its latest. It recently set much more aggressive standards than are necessary for sulfur in gasoline.

Given its history under President Bill Clinton, no one should expect EPA to be any more shy about implementing prescriptions of the Kyoto protocol on climate change against the intent of Congress. It's against that unappealing prospect that the oil and gas industry may ultimately find the court's demand for regulatory restraint to be the most important to its business.

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