US industry optimistic despite smog-soot case loss

Industry groups found some encouragement in the US Supreme Court decision Tuesday upholding the Environmental Protection Agency's smog and soot rule. The court rejected a major challenge to the 1970 Clean Air Act and EPA's implementation of it.

By the OGJ Online Staff

HOUSTON, Feb. 28
�Industry groups found some encouragement in the US Supreme Court decision Tuesday upholding the Environmental Protection Agency's smog and soot rule.

The court rejected a major challenge to the 1970 Clean Air Act and EPA's implementation of it.

The court said EPA was not obliged to consider an extensive cost/benefit analysis of its 1997 rulemaking. And it said EPA had not assumed powers that the US Constitution reserved for Congress. The rule affected refineries, as well as other oil industry operations (OGJ Online, June 1, 2000).

However, the court said EPA's implementation policy for ozone was "unlawful." It delayed enforcement of the EPA clean air rules while a lower court hears arguments on the basis for them.

The American Trucking Associations and oil groups had maintained that EPA had failed to show that public health protection considerations justified the tougher rules. The court also said EPA had assumed regulatory powers that Congress had not, or could not, delegate under the US Constitution. An appeals court had upheld their suit.

The American Petroleum Institute said, "We are disappointed that the US Supreme Court did not require EPA to give greater consideration to important nonenvironmental and nonhealth impacts of ambient air standard-setting decisions, such as economic impacts.

"We are encouraged, however, by the court's decision to require EPA to adhere to Congress's comprehensive ozone ambient air quality program. This is an important step in assuring the reasonable and predictable implementation of ambient air quality standards. We will be watching closely to see how the agency responds to this part of the decision."

Thomas Donohue, president and CEO of the US Chamber of Commerce, said, "EPA cannot enforce its new rules until the agency proves to the Court of Appeals that the EPA rules are reasonable rather than arbitrary and capricious�and in this case, three will be our lucky number," said.

The National Chamber Litigation Center, the legal arm of the US Chamber, and other business groups have won two lower court rulings challenging the EPA's revised National Ambient Air Quality Standards for particulate matter and ozone. The Chamber argued the new standards were not supported by sound science and that the EPA failed to explain how the standards would protect public health with an adequate margin of safety.

Failing to understand the link between a strong economy and a clean environment will depress future economic growth and curtail opportunities for businesses and workers alike, according to the Chamber. "While the Supreme Court ruled they cannot compel the EPA to consider the link between regulatory cost and regulatory benefit, the Congress can," said Donohue.

"We will continue this fight in the new administration and with lawmakers, warning of the crushing blow these multibillion dollar rules will have on the economy, businesses and jobs�with no scientifically proven benefit to health. The government's own estimates for the ozone standard alone show that the total cost of compliance for business would rival the gross national product of Canada�$720 billion," Donohue said.

The National Association of Manufacturers expressed dismay in the court's opinion.

Michael Baroody, NAM's executive vice- president, said, "We are disappointed in the Court's decision not to find a constitutional problem where we thought one was clearly presented. We had hoped that the court would find that the EPA had usurped the power of Congress to make law when it substantially and arbitrarily lowered air quality standards.

"NAM is determined to work with the White House and Congress to rein in regulatory excess by the EPA and other agencies. The public deserves a legislative branch that does not enact overly broad statutes. It also deserves an executive branch that acts openly, with restraint and clarity, and that bases its regulatory decisions on sound science and cost-benefit analyses.

"Since the Court also rejected the argument that the EPA should consider costs when setting air quality standards, the NAM plans to work with lawmakers on potential legislation addressing costs and benefits as well as health and safety factors. The overall climate for rulemaking must be improved, and we must redouble our efforts to ensure that agencies do not regulate in the dark.

"Finally, since the court rejected the EPA's implementation schedule for ozone limits in so-called 'nonattainment areas,' sending the case back to the lower court for clarification, the NAM has reason to remain optimistic that the ozone and particulate matter rules will be voided. In addition, we expect the new administration to use an open process for resolving this issue, with the full involvement of all affected parties."

The American Trucking Associations, one of the lead plaintiffs, said, "The objective of these lawsuits was to work to obtain clear, understandable legal standards to promote clean air in a sensible fashion.

"The ruling that EPA exceeded its authority in attempting to impose a new ozone standard, coupled with the lower court's unchallenged decision that the beneficial health effects of ozone should have been considered, are significant developments toward this objective."

The group Environmental Defense praised the decision. Senior attorney Vickie Patton said, "When implemented, these standards will protect 125 million Americans from the serious health effects of smog and soot. Unfortunately, industry's legal attacks have delayed by several years fundamental steps to begin implementing these standards."

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