Power in a political mush

Nov. 20, 2000
The delicate political balance emerging from this month's general election in the US adds importance to a future Supreme Court decision already crucial to the oil and gas industry.

The delicate political balance emerging from this month's general election in the US adds importance to a future Supreme Court decision already crucial to the oil and gas industry.

At this writing, outcome of the presidential race still awaited vote recounts in Florida and settlement of related legal issues. Whatever the outcome, the winner will take office with no mandate and the need to address questions about legitimacy of his victory.

Congressional outcomes are almost as equivocal as the presidential quagmire. Republicans keep control of the House of Representatives, having won 220 seats to the Democrats' 211 and independents' 2, with 2 seats undecided. Republicans also keep control of the Senate-but just barely.

In races decided by the middle of last week, Republicans hold the edge: 50-49. Undecided last week was the race in Washington state between Democrat Maria Cantwell and Republican Sen. Slade Gordon. Even if Cantwell wins, Republicans hold the Senate advantage. A Bush victory in the presidential election would make his vice-president, Dick Cheney, the tie-breaking Senate president. And a Gore victory would enable Connecticut's Republican govenor to appoint a replacement for Sen. Joseph Lieberman, who would become vice-president.

Splits and margins

This all makes the government a political mush of even splits and paper-thin margins. It's the revenge of the undecided.

And it can be healthy if it checks government activism. The evenly split Congress convening next year will set no records for volumes of laws passed. And the president taking office in January will have to proceed humbly during at least the first 2 years of his term.

The new president and Congress will expend much of their energy on interparty diplomacy. And the temptation will be strong to shunt power to federal agencies. To a politically challenged president, the agencies will represent unusually inviting avenues through which to steer agendas snubbed by a divided Congress. And to lawmakers in a deadlocked Congress, the agencies might become shields against unwanted conflict. Unable to win Senate ratification of the Kyoto Treaty on Climate Change, for example, a Pres. Al Gore might try to implement through the bureaucracy energy abominations that Congress would never directly approve-but that lawmakers might not stray off Capitol Hill to fight.

It is for just such reasons that the decision in a pair of cases argued earlier this month before the Supreme Court will be so important to the oil and gas industry. The decision will address limits of agency authority.

The cases, Browner vs. American Trucking Associations and American Trucking Associations vs. Browner, involve the Environmental Protection Agency's July 1997 toughening of air-quality standards for ozone and soot. In May 1999, the US Court of Appeals for the District of Columbia Circuit ruled in a case brought by various industry groups that EPA's regulation amounted to "an unconstitutional delegation of legislative power." It also rejected an argument that the Clean Air Act allows EPA to consider costs in its decision-making about air-pollution standards. The industry groups appealed the lower court's decision on costs, and EPA appealed the decision about its authority. The Supreme Court combined the appeals and will issue its opinion by next July.

The oil and gas industry should hope for a hard judicial jerk on EPA's reins. During the administration of Pres. Bill Clinton, the agency has regulated aggressively and often needlessly. Its attempt to stiffen ozone pollution standards was a case in point. In response to new but questionable medical suspicions, EPA tightened regulation despite steady declines in ozone pollution under existing programs. Industry groups were right to question both the agency's authority to do so and its refusal to take cost into account.

Republic on edge

Under any circumstances, then, the forthcoming Supreme Court decision would be important. Under any circumstances, a federal agency given to regulating to whatever extent it can get away with needs to be brought under control.

But the need is especially great in a republic balanced on a political edge as fine as the one on which the US now finds itself. With elected officials on tiptoes, power might migrate to rogue bureaucrats only too eager to wield it. The Supreme Court can keep it from happening. The oil and gas industry and its customers should hope that it does.