Commentary - The end of health standards?

In May 2000 the U.S. Supreme Court agreed to hear the arguments of the American Trucking Association and other industry groups on why the U.S. Environmental Protection Agency (EPA) should consider costs in setting the health-based national ambient air quality standards in the case American Trucking Association, et al. v. Browner (Docket number 99-1426, 05/30/00). The Court's agreement to hear this issue came a week after it agreed to hear EPA's appeal of the May 1999 remand by the D.C. Circuit Court of Appeals of the 8-hour ozone and PM<> ambient standards (Browner v. American Trucking Association, et al., Docket number 99-1257, 05/22/00).

The Supreme Court should stick with precedent and leave to Congress the issue of requiring costs to be considered in determining health effects.

Most leading environmental and industry advocates agree that a decision by the Court requiring EPA to consider costs in setting the ambient standards would be monumental and would greatly affect the shape of clean air policy to come. So as the representatives of the clean air technology and monitoring industry for stationary sources — which is buffeted by clean air policy — we naturally ask ourselves: should the Court require EPA to consider costs in this process, and more importantly, if the Court holds that EPA must consider costs, would it greatly affect clean air policy?

Under current interpretations of the law, which the Supreme Court has upheld for twenty years, setting national ambient standards involves two essential steps. First, EPA examines epidemiological and other data without regard to costs in determining the point at which air pollution adversely affects public health and the environment. Second, EPA does consider the costs of a proposed policy compared to its benefits in developing clean air policy to attain these standards. From a logical standpoint, this makes sense since determining if adverse health or environmental effects exist from a given level of air pollution is unrelated to the cost of achieving those standards. If there is a reason to change this two-step analysis (and we do not see any), then it becomes Congress' responsibility (not the Supreme Court's) to amend the Clean Air Act to provide so, and indeed several bills introduced in the current Congress would do just that.

While the air pollution control and monitoring technology industry — a highly competitive industry whose fortunes have been frequently dashed by mercurial and uncertain clean air policy — we have learned to approach clean air issues gingerly, and thus we ask: what is the worst case scenario for us? Here, according to both environmentalists and industry, it would appear to be a decision that EPA must consider costs even in determining health effects. But would this precipitate a sea change in clean air policy? Perhaps not.

First of all, even under a health-only determination, it is not clear that health science delivers the precise standard. Our guess is that other factors such as economics and politics play a role in determining final standards. More fundamentally, however, standards such as the PM2.5 and 8-hour ozone standard before the Supreme Court can be justified under a cost-benefit analysis.

For example, the D.C. Circuit Court of Appeals premised its May 1999 remand on an arcane legal theory — the "non-delegation doctrine" — but did not find fault with the scientific basis for the standards. The appellate court even said "the growing empirical evidence demonstrating a relationship between fine particle pollution and adverse health effects amply justifies establishment of new fine particle standards."

Also instructive is an EPA report released last year. It estimates that the benefits of the 1990 Clean Air Act Amendments exceed the costs by a startling ratio of four to one. Benefits analysis is improving. During implementation of the Clean Air Act, markets, users and technology suppliers have proven more adept at realizing innovative cost reductions than originally predicted. Intense competition in the air pollution control and monitoring technology industry has improved overall quality and enhanced the industry's on-going recognition of the need to supply value-added, highly-engineered solutions to air pollution problems.

In short, the obstacle to effective clean air policy for us — and for public health and environmental advocates — is not the inability to justify clean air policy in terms of costs and benefits, but the uncertainty and delay in adopting and implementing this policy. History shows that when clear, enforceable standards and policies are adopted, industry and technology vendors can craft cost-effective compliance options.

It is fair to assume that even under a cost-benefit analysis, EPA will be able to implement health standards for smog and soot aimed at protecting 125 million Americans, including 35 million children. The final arbiter of these standards will be the American people, who in poll after poll express strong support for clean air initiatives. The courts are a poor vehicle for setting clean air policy because it is so complex, and affects so many interests.

For these reasons, the Supreme Court should stick with precedent and leave to Congress the issue of requiring costs to be considered in determining health effects. If the Court mandates cost considerations, short-term delays and uncertainty will result, but the long-term effect on clean air policy is apt to be less than monumental.


Jurist: The Legal Education Network —
Office of Air and radiation - EPA's updated air quality standards for smog and particulate matter —
Institute of Clean Air Companies (ICAC) —
Legal Information Institute's Supreme Court Collection —

This article appeared in Environmental Protection, Volume 11, Number 9, September 2000, Page 45.

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This article originally appeared in the 09/01/2000 issue of Environmental Protection.