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Published in Providence Business News (July 19-25, 1999)

That thud you may have heard coming out of Washington earlier this year was the Environmental Protection Agency taking it on the chin.

A three judge federal appellate court struck down the EPA’s controversial, and very stringent, new air pollution control regulations in a decision that left little doubt the Court saw the EPA taking the law into its own hands by exercising authority Congress had not given it.

At issue were new clean air standards for particulate matter and ozone which many business groups asserted were so stringent they would have cost industry hundreds of million dollars over coming years without any demonstration of being necessary to protect human health.

The court found that although EPA had considered reasonable factors in determining the degree of public health concern associated with different levels of ozone and particulate matter, in formulating its new regulatory standards EPA articulated “no intelligible principle” to the application of these factors. As the court stated by analogy:

“. . . it is as though Congress commanded EPA to select ‘big guys’ and EPA announced that it would evaluate candidates based on height and weight but revealed no cutoff point. . . . The reasonable person responds, ‘how tall? how heavy?'”

Because the EPA simply established criteria, with no rational justification, the court found that the EPA’s interpretation of the Clean Air Act was an unconstitutional delegation of legislative power. Only the Congress can exercise legislative power. Administrative agencies, which are members of the Executive Branch, have only the power given them by Congress.

In fact, the standards set by EPA in order to reduce smog were so void of rational justification that the court pointed out that in setting its enforceable standard the “EPA’s formulation of its policy judgement leaves it free to pick any point between zero and a hair below the concentration yielding London’s Killer’s Fog”.

The Court also found that in setting a standard for particulate matter the EPA’s conduct was “arbitrary and capricious”, which is a legal standard for overturning an administrative decision which is so high that it is seldom found. Usually an administrative agency can convince a court that as bad as its rulemaking was, there was at least some reasoned basis to support it. Not so with the EPA’s new air quality standards for particulate matter.

One member of the three judge panel dissented, arguing that in the past courts have given administrative agencies a great deal of deference in setting administrative regulations and that this decision was inconsistent with that prior deference.

In part, the dissenting justice may well be correct, but the real issue is whether in the past the Congress and the courts abdicated their responsibility of ensuring that unelected bureaucrats at administrative agencies do not exercise the authority granted to elected legislators.

The fact that the EPA, and other agencies, have gotten away with quite a bit in the past is not exactly a compelling argument that this high-handed style of bureaucratic regulation should continue.

This recent court decision probably came as something of a surprise to EPA Administrator Carol Browner, who hasn’t yet quite figured out that pesky little details like the U.S. Constitution occasionally get in the way of government telling people what they are going to do and when they are going to do it.

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