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Supreme Court Weighs the Power of the EPA

      WASHINGTON, Nov. 7 (UPI) - While Americans went to the polls Tuesday, the Supreme Court heard extended argument on the power of the Environmental Protection Agency to set clean air standards.

      At issue in two related cases was whether there was an unconstitutional delegation of congressional power when the EPA set the latest standards for particulates and ozone emitted into the air, and whether the agency must take into account the burden on business and industry when setting such standards.

      But in a larger sense, the cases were about political values at stake in the ongoing presidential election. Do tough standards by the EPA keep Americans healthy in a reasonable way, or do they arbitrarily set unreasonable goals that harm the nation economically while pursuing unattainable ideals?

      The 1970 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, including carbon monoxide, ozone, lead and particulates.

      The EPA issued revised NAAQSs for particulate matter and ozone "in 1997 in light of new scientific knowledge about the adverse health effects of those pollutants," the agency told the Supreme Court in a brief.

      "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 old 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 under the Clean Air Act represented "an unconstitutional delegation of legislative power" from Congress.

      The appeals court majority said the problem with the EPA''s interpretation of the law was that it 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. A killer fog took 4,000 lives over four days in the British capital in 1952.

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

      Speaking for the EPA before the Supreme Court Tuesday, U.S. Solicitor General Seth Waxman argued that the standards have "not violated the non-delegation doctrine" by attempting to protect "the public safety" in ways that "reflect the criteria of current scientific thought."

      At one point, Justice Stephen Breyer suggested from the bench that the equation could be expressed in terms of "coughing outdoor children." Reducing the ozone in the atmosphere to .08 percent would reduce the number of coughing children, but reducing it still further in a line from .08 to .07 to .06 would affect even more coughing children. Breyer asked how would the EPA "know where to stop on that line?"

      Waxman said EPA chose .08 percent instead of .07 because "there were no demonstrated health effects below .08" that were not "transient and reversible."

      Speaking for industry, Washington attorney Edward Warren said in passing the Clean Air Act, Congress did not intend for the EPA to produce air standards "that will cost (industry) nearly $50 billion a year by 2010 ."

      Speaking for Ohio and several other states in support of Warren in the first case, state Assistant Attorney General Judith French told the justices that EPA''s setting of standards "conflicts with Congress''s intention." She said the 1990 amendments to the Clean Air Act, which spread out the time period under which the states had to achieve compliance with standards, constituted "realistic standards and measured progress."

      But the new standards set by EPA in 1997 turned back the clock, she contended. "For the states, that means a return to missed deadlines and uncertain standards," she said.

      She also insisted that even though the Clean Air Act requires EPA to revise standards in general every five years to keep up with the latest scientific opinion, a later provision of the same act fixes standards for ozone in 1990 and can''t be revised by the EPA.

      Waxman and Warren also argued the second related case before the Supreme Court, but in reverse roles. This time, the appeals court in Washington earlier had ruled for the EPA and against industry.

      In the second case, the lower court ruled that the Clean Air Act requires that the EPA explicitly not consider the burdens on industry when revising new air standards.

      Addressing that issue Tuesday, Warren said, "This agency wants to regulate every nook and cranny of the environment." He also tried to frame the argument in terms of a definition of "public health," which he insisted must include a cost-benefit analysis.

      After Warren spoke at length about bringing "common sense" to the problem of achieving "public health," which he said was different from "personal health," Justice Sandra Day O''Connor interrupted.

      "I''ve listened to a lot of vague language," O''Connor said. When Warren nodded in agreement, the justice quickly added, "From you." O''Connor told him to get to the point and say what he thought "public health" meant.

      "Public health contemplates the consideration of competing factors, including cost," to reduce sickness in the general population, Warren said. "Those resources (expended in the pursuit of unrealistic goals) could be better used elsewhere."

      For his part, Waxman told the court that in the 30 years since the Clean Air Act was passed, the EPA has set air quality standards "solely by reason of the effects of pollutants in the air." Cost-benefit analysis only comes into play, Waxman sai

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