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The Clean Air Act is one of the great success stories of American environmental law. Emissions of most of the pollutants regulated by the act’s program of national air quality standards have dramatically decreased in the 30 years the program has been in place, despite substantial increases in the size of our population and the amount of economic activity. A recent peer-reviewed, retrospective study of the Clean Air Act by the Environmental Protection Agency concluded that the act had produced almost 22 trillion dollars more in benefits than it had imposed in costs in its first 20 years, and stated that even this dazzling amount probably understates the benefits of the statute. An influential survey of the EPA managers concluded that the air pollution regulated by the national air quality standards should come first on a list of environmental problems ranked according to the risks they posed to human health, welfare, and ecosystems. The act requires the EPA to set national air quality standards based on the latest scientific evidence of the adverse effects of air pollution on public health and welfare. These standards govern the quality of the outdoor air throughout the nation. They address the pollutants that are among the best-studied, most pervasive, and most diversely harmful of the byproducts of industrial society. For 30 years — ever since the Clean Air Act as we know it today was enacted — the EPA has interpreted the statute to prohibit the consideration of economic costs in setting these standards. The American Trucking cases ( American Trucking Associations v. Browner and Browner v. American Trucking Associations) being argued in the Supreme Court Nov. 7 hold the potential to disrupt this successful and long-standing regulatory regime. Industry groups challenging two air quality standards set by the EPA ask the Supreme Court to hold, contrary to 30 years of agency and judicial precedent, that the Clean Air Act requires the EPA to balance costs against benefits in setting air quality standards. These groups contest the validity, under both the Constitution and the Clean Air Act itself, of the EPA’s longstanding view that the act prohibits the consideration of costs in the setting of these standards. These cases arise out of a single, striking ruling by the U.S. Court of Appeals for the District of Columbia. In response to petitions challenging new standards the EPA set in 1997 for particulate matter and ozone (soot and smog), the court held that the EPA’s approach to setting air quality standards — which has from the start considered scientific estimates of the severity and magnitude of adverse effects of air pollution, along with the uncertainty surrounding such estimates — violated the constitutional prohibition on unconstrained assignments of authority from Congress to the executive. The court implicitly fashioned a new requirement in the name of the nondelegation doctrine — one that demands that guidance for agency action come in quantitative form. Because it found no numerical “cutoff point” for air quality standards in either the Clean Air Act or the EPA’s interpretation of it, the court of appeals held that neither the statute nor the EPA’s interpretation provides the “intelligible principle” that the Supreme Court has long required of assignments of authority from Congress to the executive. The D.C. Circuit vastly overstated the degree of discretion the EPA has claimed in setting air quality standards, ignoring the many constraints the Clean Air Act explicitly places on the EPA’s authority. Congress has devised an intricate and highly constrained process for the establishment and revision of the air quality standards. This process prescribes the factors the EPA is to consider (and not to consider) in setting these standards; requires a margin of safety to address the problem of scientific uncertainty; targets only ubiquitous, harmful air pollutants; mandates exhaustive scientific inquiry into the consequences of these pollutants for human health and welfare; requires the EPA to consult with a scientific committee formed to advise the agency on the consequences of and alternative regulatory responses to air pollution; requires extensive opportunity for public review and comment; and provides for judicial review. In truth, the Clean Air Act’s manifold constraints on the EPA’s discretion make the statute look like a veritable straitjacket compared with other assignments of authority from Congress to the executive that the Supreme Court has previously upheld. In particular, by providing that the EPA may, in setting the national air quality standards, consider only pollution’s effects on human health and welfare, Congress squarely confronted the most difficult and most basic choice a decision-maker faces when devising environmental standards — whether the government should trade off human lives and health for dollars — and firmly answered “no.” DEEP MISUNDERSTANDING In requiring a quantitative “meta-standard” for air quality standards, the court of appeals revealed a deep misunderstanding of the Supreme Court’s nondelegation doctrine. The Court has never required that congressional assignments of authority to the executive take a particular form, numerical or otherwise. Indeed, in a series of cases brought before the Court in the 1940s, regulated entities objected to giving any policy-making discretion to agencies at all. The Supreme Court responded by squarely rejecting the claim that Congress must speak with mathematical precision. The Court recognized that if it required such specificity from Congress, “the burdens of minutiae would be apt to clog the administration of the law and deprive the agency of that flexibility and dispatch which are its salient virtues.” Air pollution control is an especially inappropriate context for a requirement like that fashioned by the D.C. Circuit. Given the dynamic nature of scientific inquiry and the multifarious issues that arise when regulating air pollutants that have very different effects and mechanisms of effects on human health and welfare, it would be impossible to devise in advance a catch-all, quantitative standard to govern all decisions setting air quality standards. Requiring a quantitative meta-standard to govern the setting of air quality standards would effectively shut down the federal program of air pollution control and turn the nondelegation doctrine into an agent of regulatory paralysis. The Supreme Court observed several terms ago that the nondelegation doctrine “has developed to prevent Congress from forsaking its duties.” In this light, it is highly relevant that Congress has, from the beginning, kept a very close eye on the development of air quality standards and has frequently altered statutory requirements in response to agency decisions and experience. Far from abdicating its legislative role, Congress has actively shaped the contours of the federal program protecting air quality. Indeed, all of the constraints on the EPA actions were forged in Congress based on an ongoing dialogue with the executive. The tradition of dialogue and collaboration between Congress and the executive reflected in these decades of congressional and executive actions shows that the purpose of the nondelegation doctrine — to prevent Congress from forsaking its legislative role — is amply satisfied by the Clean Air Act. The constitutional case against the Clean Air Act is thus easily resolved in favor of the act. Moreover, the constitutional case is so weak that it triggers the doctrine counseling avoidance of difficult constitutional questions through statutory interpretation. However, business interests challenging the EPA’s authority to set air quality standards have another arrow in their quiver. They ask the Supreme Court to adopt a new rule for statutory construction, one that would require Congress explicitly to rule out cost-benefit balancing if Congress does not want the courts to superimpose such balancing on the statutes it enacts. HEALTH, NOT COSTS The meaning of the Clean Air Act, however, is plain and has been settled for decades: Costs may not be considered in setting the national ambient air quality standards. The act clearly directs the EPA, in setting the national air quality standards, to consider only the effects on public health and welfare of breathing polluted air. The act instructs the EPA to base these standards on scientific evidence of the effects on public health and welfare from “the presence of [an air] pollutant in the ambient air.” This instruction leaves no room for the consideration of costs. Were there any doubt on this point, it would be dispelled by the numerous provisions of the act explicitly allowing or requiring the administrator to consider costs in implementing the national air quality standards; clearly, Congress knew how to permit the agency to consider costs when Congress wanted to. Because the language of the Clean Air Act plainly rules out economic considerations in the establishment of the air quality standards, the business interests challenging the EPA’s authority are effectively arguing that Congress must use certain magic words — such as, perhaps, “and we really mean it!” — in precluding cost-benefit balancing. The proposed new canon of statutory construction would mean that because Congress did not, three decades ago, foresee the new canon and therefore did not then know that it must use certain magic words in excluding the consideration of costs, Congress’ work could be undone. This is not a canon of statutory construction at all; it is a canon of statutory destruction. The question whether to apply a generic cost-benefit test to health and environmental regulation is a public policy decision of the highest order. Congress so far has not embraced such a generic test, and indeed, the vociferous battles several years ago over the Contract With America were fought (and lost) largely on this ground. The Supreme Court should not hand the business community a political victory it has failed to obtain in the political branches. Lisa Heinzerling is a professor of law at Georgetown University Law Center. She is counsel of record for Massachusetts and New Jersey in Browner v. American Trucking Associations and American Trucking Associations v. Browner .

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