The Congressional leadership is unwilling to challenge the Environmental Protection Agency’s new air quality standards. But this does not mean the standards will last. As of this writing, over 40 parties are suing to block the rules in federal court. The EPA standards got started in federal court, and they may end there as well.
The EPA, under court order to review the existing rule for allowable particulate matter levels, decided to propose stringent new standards for both ozone and particulates, two of the six so-called criteria pollutants regulated under the Clean Air Act (CAA). The EPA’s draft rules, announced last November, initiated one of the most contentious battles in the 27 year history of the CAA. Opponents attacked the Agency’s shoddy science and abrogation of procedural requirements, to no avail. The costly new rules were finalized last July with Clinton’s endorsement.
With minimal prospects for a legislative challenge to the rules, over 40 groups are taking on the EPA in the U.S. Court of Appeals For the D.C. Circuit. These plaintiffs – representing all manner of large and small businesses, farmers, a labor union, three state governments, among others – reflect the broad base of opposition to these measures.
There are two basic legal arguments against the standards: 1) the EPA’s actions are not supported by the evidence, and 2) the agency failed to comply with the procedural requirements of the Small Business Regulatory Enforcement Fairness Act of 1996 (SBREFA).
The first of these arguments involves questioning the EPA’s scientific justification for its rules. This is a tough legal claim to make, as courts tend to defer to agency expertise on technical matters. Here, however, the evidence EPA relied upon is so problematic that the court may indeed find these rules "arbitrary and capricious," thus legally unacceptable.
For the first time, EPA took action without the unqualified endorsement of its own scientific advisory panel, the Clean Air Scientific Advisory Committee (CASAC). While EPA Adminstrator Carol Browner has claimed the overwhelming support from CASAC for nearly every detail of the rules, CASAC members say otherwise. Evidence from one or more of EPA’s own experts undercutting the agency’s case would certainly make an impression with the court.
CASAC members had good reason to be skeptical. The evidence of health benefits substantially above those attributable to existing standards for ozone and particulates is surprisingly weak. In addition, the EPA did not make some of its information available during the public comment period, presumably because it further damaged its position.
The EPA also ignored its own evidence that a decline in atmospheric ozone may harm human health by allowing more ultraviolet radiation to reach ground level. This violates EPA’s duty under the CAA to consider "all identifiable health effects," when setting standards that "allowing an adequate margin of safety, are requisite to protect the public health." The selective filter through which EPA only looked at evidence favorable to these rules will now be questioned in light of the totality of information whose consideration is required by law.
The second charge is that the EPA avoided many procedural requirements. Congress enacted SBREFA to provide small businesses with a weapon against federal regulations that harm them. It requires regulators, before creating rules that will have "a significant impact on a substantial number of small entities," to confer with small businesses, conduct a regulatory flexibility analysis of the impact on small businesses, and try to minimize that impact.
The EPA did none of this, arguing that SBREFA does not apply because the rules will not have a direct impact on small businesses. But plaintiffs representing the small business community strongly disagree. So does the Small Business Administration, which said that the rules "will unquestionably fall on tens of thousands, if not hundreds of thousands of small businesses," and called EPA’s attempted evasion "a startling proposition." An agency refusal to comply with SBREFA is judicially reviewable, and this will be the first major legal test of the 1996 statute.
These suits could take years to be resolved, and a victory against the EPA may still leave the agency with the option of re-proposing nearly identical rules. Still, with Congress sitting on the sidelines, these lawsuits may be the last best hope to prevent implementation of the costliest and craziest regulations in the history of the Clean Air Act.
Ben Lieberman ([email protected]) is a CEI environmental policy analyst.