Federal Court Ruling Blurs Lines of Authority

NCPA Expert Says EPA Authority over Pollution Monitoring Should be Maintained


WASHINGTON (Aug. 21, 2008) - A federal appeals court ruling on pollution monitoring demonstrates a social justice view and not a constitutional view of government, according to NCPA Senior Fellow H. Sterling Burnett.

On Wednesday, the U.S. Court of Appeals for the District of Columbia Circuit found that the Environmental Protection Agency (EPA) violated a provision of the Clean Air Act which requires adequate monitoring of emissions to ensure compliance with pollution limits. The majority of the court said federal standards often are not sufficient to ensure proper monitoring, so states and local governments must be allowed to fill the gap.

"The courts have once again imposed their view of social justice in place of constitutionally defined lines of authority," Burnett said.  "Absent Congressional action, the EPA, not states nor the courts should, be recognized as having the sole authority to require monitoring and specify how it is undertaken

According to Burnett, the EPA gets its authority to monitor and regulate chemicals from Congress, which gets its authority from the interstate commerce clause in the Constitution.  He said Congress has given the EPA the discretion to delegate regulations to the states and to allow states to set more stringent regulations.

"The court is evidently comfortable with picking and choosing, in defiance of Congressional intent or the specifics of the law, where federalism and states' rights limit the EPA's authority and where it doesn't.  Maybe it should really embrace federalism and let each state set its own environmental quality standards," Burnett said.   "On what basis can the Court draw a clear line of authority?" he asked.

"This ruling will likely result in monitoring standards that differ from state to state, resulting in costs which vary from state to state and a less certain regulatory environment for companies.  State with higher burdens will lose businesses and jobs, with no gain in environmental quality," Burnett said.

The NCPA is an internationally known nonprofit, nonpartisan research institute that advocates private solutions to public policy problems.