In EPA Case, Court Weighs Power of Agencies ; Supreme Court Probes Sharper Limits on Regulators in a Possibly Far- Reaching Case

Article excerpt

Three years ago, the Environmental Protection Agency enacted tough air pollution standards to reduce the amount of soot and smog in the atmosphere.

Instead of ushering in an era of cleaner air, it triggered an avalanche of legal challenges by industry groups, complaining of costs of up to $150 billion a year. They question whether the US Constitution permits unelected bureaucrats to wield the kind of discretionary power that could, in theory, bring American industry to its knees.

In one of the most important cases of the year, the US Supreme Court today begins examining whether EPA Administrator Carol Browner usurped Congress's legislative powers when she used her broad discretion to set the new pollution limits under the federal Clean Air Act. The justices will also decide whether the EPA must consider economic and other factors in addition to health risks. The case sets the stage for what could become a major showdown over

over the power and primacy of federal regulatory agencies operating under broad and often ambiguous mandates from Congress.

"If the Supreme Court goes along with [a lower court's ruling that the EPA acted unconstitutionally], it will have repercussions far beyond the Clean Air Act and far beyond environmental legislation," says Jeff Gleason, head of the air-pollution project at the Southern Environmental Law Center in Charlottesville, Va. "It is going to affect the ability of agencies to effectively implement legislation, regardless of the nature of that legislation."

Critics of the power of federal regulators say that Congress has granted too much discretion to these executive branch agencies, and the agencies themselves have sometimes used that discretion to expand their power beyond limits authorized by the Constitution.

"The lack of clear congressional standards limiting EPA, coupled with the agency's unfettered discretion to establish its own guideposts, ensures that there is no adequate check on EPA's decisionmaking," writes Laurence Tribe, a Harvard Law School professor who filed a friend-of-the-court brief on behalf of General Electric. "The balance of authority contemplated by the separation of powers does not exist."

Lawyers for the EPA disagree. They say Congress imposed enough limitations on EPA discretion to pass constitutional muster. "An executive branch agency, acting pursuant to congressional direction, is entitled to assess the available evidence and make a reasoned judgment on the proper regulatory standard," writes Seth Waxman, US solicitor general, in his brief for the EPA.

At issue in the case is how the EPA sets new air-pollution standards. Under the Clean Air Act, Congress instructed it to use the most up-to-date scientific information available to set limits that will best protect public health. …


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