Newspaper article The Christian Science Monitor

Of Soot, Birds, and the Law ; Need to Balance Official Authority over Air and Water

Newspaper article The Christian Science Monitor

Of Soot, Birds, and the Law ; Need to Balance Official Authority over Air and Water

Article excerpt

Federal and state laws to clean up the nation's air and water have been on the books for decades, and they've been remarkably effective.

But do these federal laws rest on constitutionally shaky grounds?

The US Supreme Court is weighing that question as it considers two cases that challenge federal authority to set strict limits for air pollution and to oversee wetlands. Its decisions are expected by the end of June.

One issue not at stake here is whether environmental protection remains a priority in the United States. Rather, the issue is how to balance competing claims of authority over maintaining clean air and water.

Who rules on pollution?

In a case involving federal clean-air rules, the specific issue is the way Congress, and the agencies it empowers through law, go about the task of environmental protection. Legitimate questions are being raised.

Industry groups prevailed at the appellate-court level by arguing that Congress has unconstitutionally delegated lawmaking authority to the Environmental Protection Agency. The EPA was given wide discretion to set limits on pollutants like ozone and and airborne soot in line with its determination of public-health risks.

Unquestionably, this is broad authority. But what's the alternative? To have Congress write into law all the meaningful limits for pollution that can quickly become obsolete as scientific knowledge and technical capabilities improve?

The federal clean-air law has shown its pragmatic mettle for nearly 30 years. It's hard to argue now that Congress got it wrong or that it should suddenly take back authority over the details of regulation.

Industry lawyers also argue that federal rulemaking on pollution limits should take costs into account. The costs include financial strains on companies in reducing air emissions. Proponents of this approach say it better represents Congress's intent.

Yet it runs counter to past federal court decisions that have upheld the EPA's focus on public-health concerns alone. And Congress itself has turned back attempts to broaden that focus.

Even more to the point, the Clean Air Act already provides ways to consider industry's cost concerns. State and local officials can take such concerns into account as they devise ways to meet federal standards. …

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