Clean Air Case Mirrors Larger Political Struggle

      WASHINGTON, Nov. 3 (UPI) - As Americans go to the polls next Tuesday to elect a new president, that titanic political struggle will be reflected in a parallel legal battle in the Supreme Court of the United States, with many of the same environmental issues at stake.

      At the heart of the Supreme Court dispute is the power of the Environmental Protection Agency to set standards for air quality, and the demand from business interests that the costs to them in money and research at least be considered when the EPA promulgates new regulations.

      The first of two cases scheduled for argument Tuesday, Browner et al vs. American Trucking Assns. et al, deals with whether the EPA unconstitutionally used authority that properly belongs to Congress in setting tough new air quality standards.

      The second of the two cases, American Trucking Assns. et al vs. Browner et al, deals with whether the Clean Air Act requires the EPA to consider the costs to business when setting air standards.

      The two presidential nominees, Vice President Al Gore and Texas Gov. George W. Bush, aren''t directly involved in the cases, but their surrogates certainly are.

      The Clinton administration paints a stark picture. EPA Administrator Carol Browner told a National Press Club audience Wednesday, "Two important things are going to happen Nov. 7 that will have a long-range implication for our nation''s environmental and public health, " the election and the Supreme Court argument. "This decision will be made by nine justices, but could echo for generations in areas of public health, environmental, consumer and workplace protection," she contended.

      The files on both EPA cases scheduled for Tuesday are thick with friend-of-the-court briefs, including those from Republican congressional leaders and traditional GOP allies such as the Washington Legal Foundation supporting industry in the cases.

      One support brief by Sen. Orrin Hatch, R-Utah, chairman of the Senate Judiciary Committee, and Rep. Tom Bliley, R-Va., warns that because of past court decisions "irrationally" preventing "the agency from considering the cost effectiveness of its regulations EPA engages in a science charade wherein policy and economic judgments are masked as scientific determinations."

      A brief supporting the EPA from nine states led by California tells the Supreme Court that the stakes are as "immediate as the asthma attack that takes a child from the softball field to the hospital on a hot summer day."

      Another brief from the Institute for Justice and the Cato Institute, both conservative champions of federalism, supports industry. The relevant provision of the Clean Air Act "is unconstitutional as applied to non-threshold pollutants because the statute provides no intelligible principle by which the (EPA) is to set National Ambient Air Quality Standards ."

      The institutes argued for federalism. "In order to preserve the liberty of the American people," they said, "the Constitution''s framers separated power among three coordinate branches of the federal government" - executive, legislative and judicial. "Implicit in this structure is the idea that the political branches (executive and legislative) may not reallocate authority among themselves as they see fit."

      The Clean Air Act, last amended in 1990, requires the EPA to set "National Ambient Air Quality Standards " for pollutants considered harmful to public health and the environment.

      The pollutants include carbon monoxide, ozone, lead and particulates.

      In 1997, "EPA issued revised NAAQS for particulate matter and ozone in light of new scientific knowledge about the adverse health effects of those pollutants," the agency told the Supreme Court in the first of Tuesday''s cases.

      "Those health effects" for particulates "included premature death, increased hospital admissions and respiratory illnesses, particularly among the elderly, people with respiratory and cardiovascular diseases, asthmatics and children," the EPA said.

      The ozone standard "was inadequate to protect public health based on clinical studies and other evidence," the agency said. The effects of ozone pollution included "decreases in lung function, coughs and chest pain, potential aggravation of asthma, lung inflammation, increased susceptibility to respiratory infection, increased doctor and emergency room visits and hospitalizations, and possible permanent lung damage from repeated exposures. Children and asthmatics are particularly at risk."

      However, a group of industry associations, several states, a public interest group and several individuals challenged the new standards in a range of cases.

      Though the EPA won in some venues, a three-judge panel in Washington ruled in a challenge led by the American Trucking Associations Inc. and the Chamber of Commerce that the agency''s strict standards, derived from the Clean Air Act, represented "an unconstitutional delegation of legislative power" from Congress.

      The problem, the appeals court majority said, was that the EPA''s interpretation of the law had no "threshold" for the pollutants'' adverse affect on public health. That left the EPA "free to pick any point between zero and a hair below London''s Killer Fog" for its standards, the majority said. In 1952, a killer fog took 4,000 lives over four days in the British capital.

      The EPA eventually asked the Supreme Court for review, and after extensive briefing by both sides, the justices accepted the case.

      I n the second case, a lower court ruled that the Clean Air Act requires that the EPA not consider the burdens on industry when revising new air standards. The justices also accepted that case.

      The Supreme Court should hand down related decisions in both cases sometime before spring.

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