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
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. …