NCPA - National Center for Policy Analysis

Appeals Court Ruling Stuns Environmental Lobby

May 17, 1999

A federal appeals court has struck down the Environmental Protection Agency's new air quality standards -- regulating the amount of ozone and particulate matter in the air -- as unconstitutional. The standards were to be phased in over six years, beginning this year.

EPA officials say they will appeal the decision immediately.

  • In a two-to-one decision, the court said the agency had "failed to state intelligibly" how much pollution is too much.
  • It also said the EPA's process of setting the standards amounted to an unconstitutional delegation of powers that rest with Congress.
  • Legal experts note a revival of interest among scholars and some judges in the principle of unconstitutional delegation of powers in recent years.
  • Thomas J. Donohue, president of the U.S. Chamber of Commerce, said the court's ruling "strikes right at the heart of EPA's abuse of regulatory authority -- and that's a big win for business, large and small."

But some environmental activists saw the decision as "extremely bizarre."

The Clean Air Act allows the EPA to set standards at a level "requisite to protect the public health" with an "adequate margin of safety." EPA administrators are left to fill in the blanks -- which they have done with court approval until now.

David Schoenbrod, a professor at New York Law School in New York City, believes that Congress should at least "state the benchmark by which agency regulators decide what to do." He warns that what we have now "is environmental politics, not environmental law."

Source: John J, Fialka, "EPA Plans to Appeal Air-Quality Ruling," Wall Street Journal, May 17, 1999.


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