Clean Air Act - More Thoughts on the Federal Appeals Court Decisions

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http://www.cincypost.com/opinion/edita051899.html

Editorial: A clean air bombshell

The court decision illustrates the need for better pollution control rules.

5-18-99

A federal appeals court panel shocked the nation Friday when it overturned

two crucial air quality rules enacted by the Environmental Protection

Agency.

It was a clear victory for Ohio and the other Midwestern states and private

concerns who challenged the EPA's 1997 directives concerning ozone and fine

particulates.

But it's not at all clear the decision will stand - and, even if it does,

whether Congress and the EPA will take the steps necessary to achieve a

proper balance between public health demands and cost-effective pollution

regulation.

The 2-1 decision came from a panel in a Washington, D.C., appeals court that

has generally been friendly to environmental initiatives. It caught many

analysts by surprise, mainly because of its sweeping assertion that

Congress, in the 1990 Clean Air Act, delegated too much authority to the

EPA.

Critics of the decision say the courts, for more than 50 years now, have

regularly held that Congress not only can, but, given the growing complexity

of many regulatory fields, must, delegate broad rule-making power to

agencies such as the EPA.

The appeals court majority, however, concluded that the EPA has construed

its authority so loosely that it has effectively usurped the legislative

function entrusted to Congress. It said the EPA lacks ''any determinate

criterion for drawing lines. It has failed to state intelligibly how much

(air pollution) is too much.''

It also laid out specific faults with the EPA's decisions concerning ozone

and fine particulates.

Ohio officials say those decisions would cost Ohio utility customers and

businesses more than $2 billion in extra pollution control equipment on

power plants, higher cost gasoline and other controls.

Moreover, because the new regulations would brand Greater Cincinnati and

most other urban areas in the Midwest as being out of compliance with the

Clean Air Act, it's likely the new rules would dampen the region's prospects

for luring new companies or accommodating existing firms with major

expansion plans.

Indeed, several of Ohio's political leaders have attacked the EPA ozone and

particulate rules as an attack orchestrated by Northeastern states that are

trying to blame the Midwest's coal-fired power plants for what are really

home-grown air quality problems.

Hamilton County, for its part, has only recently come into compliance with

the ''old'' ozone limit, .12 parts per million over a one-hour period. The

new EPA rules set the limit at .08 ppm averaged over several hours.

The region would be affected even more by the new EPA rules on fine

particulates.

Without question, the Clean Air Act has been enormously beneficial, in

Greater Cincinnati and nationally. The air here is far cleaner than it was

just 20 years ago. Moreover, there is still plenty of room for progress -

with respect not only to ozone and fine particulates, but also nitrogen

oxide emissions.

The issue today is, or at least ought to be, how fast and how far the region

should go to achieve further improvements in air quality.

The problem with the Clean Air Act is that it requires the EPA to treat

pollution only as a public health issue, and to do so in a fairly rough way.

Economic development issues or cost-benefit analyses, as the court noted

Friday, are not permitted into the equation.

But no one is dropping dead in the streets from ozone, or anything else in

the air. The

real question is: How clean is enough?

With ground-level ozone, for example, it's widely held that the more that's

removed from the atmosphere, the more people benefit. But if we reach a

level (we're not there yet) where only people with asthma are affected by

the summertime ozone peaks, it would be fair to ask whether enormous

additional pollution control costs are warranted.

(It might make more sense, for example, to install high-quality air cleaners

in the homes of asthma sufferers than to install a new generation of

scrubbers at power plants.)

In his first-blush reaction to Friday's ruling, Gov. Bob Taft applauded its

emphasis on sound science and expressed hope that it leads to better

rule-making by the EPA.

Those are worthy goals. But it would be a mistake to rely on the courts

alone, or the EPA for that matter, to achieve them.

As the court majority seemed to be saying, it is up to the legislative

branch to set policy. If Congress wants sound science and a cost-benefits

test for air quality rules, it should amend the Clean Air Act to say so.