Protecting Us From The EPA
By Eric Peters
Copyright 1999 Investor's Business Daily
June 9, 1999
The recent ruling by the U.S. Court of Appeals in Washington
that the
Environmental Protection Agency must promulgate its air-quality
regulations based on science and legislative
intent is an amazing reversal of fortune for one of the most
out-of-control of
all federal
bureaucracies.
The ruling is also a clarion call for Congress to shoulder its
constitutional
duty to write laws with clear intent, rather than pass the buck to
unaccountable, often overzealous regulatory bodies.
Here's the background:
When Congress amended the federal Clean Air Act in 1990, it
authorized the
EPA to create
regulations that would meet the requirements set forth in the act.
However, the act never specifies in any meaningful way
what, exactly,
constitutes ''clean air'' or ''healthful'' environmental
conditions; instead,
there are vague platitudes about ''protecting the public health''
with ''an
adequate margin of safety.''
Thus the
EPA was effectively given carte blanche to make up its own
definitions and
standards - which is exactly what the agency did.
Last July,
EPA unilaterally lowered its definition of permissible levels of
airborne
particulate matter (soot) and ground level ozone, changing
overnight the
threshold at which localities would be found ''out of compliance''
with
air quality standards.
At the stroke of a pen, hundreds of areas all over the
country that had been
considered perfectly ''clean'' under the old standards were
transformed into
fetid sinks of putrefaction - and thus subject to strict new
emissions controls
on automobiles, industry and business that could cost at least $ 60
billion annually, according to the president's own Council of
Economic Advisors.
Private estimates put the actual cost much higher.
Economists at George Mason
University's Center for the Study of Public Choice put the tab at
a stupendous
$ 380 billion per year.
Problem is,
none of what
EPA trotted out last summer was based on any kind of scientific
rationale -which
is precisely why the court rightly rebuked the agency. In its
endless quest for
the chimera of test-tube pure air - something that has never
existed in the
real world -
EPA simply lowered its
officially tolerable standard for ground level ozone from 0.12
parts per
million (ppm) to 0.08 ppm and unilaterally decreed a reduction in
the
''acceptable'' size of soot particles to 2.5 microns, or 28 times
smaller than
the width of a human hair.
EPA touted the benefits to
severe asthmatics, the elderly and others with respiratory
problems. But this
is all theory and has never been proved.
What's more, the agency never showed how a $ 60 billion to
$ 380 billion a year
tab would provide any kind of return.
The court saw beyond the
EPA's bureaucratic fiat and sent
it a message. It wisely ruled the agency was out of line and
ordered it to go
back to the drawing board. The next time
EPA wants to lower permissible standards for pollutants, it must
provide a factual
basis for doing so.
The idea of requiring
federal agencies to demonstrate provable, objective benefits before
they go off
half-cocked in their zeal to protect us from phantom menaces with
all- too-real
price tags is certainly appealing.
But for this to become a reality, Congress must reassert
its legislative
prerogatives.
While the court did
not challenge the right of federal agencies to issue regulations,
it did note
that what
EPA did in this case was ''arbitrary and capricious,'' and amounted
to an
''unconstitutional delegation of legislative power,'' according to
the 2-1
majority opinion.
In other words,
EPA had exceeded its statutory authority in promulgating the new
standards because it was effectively legislating - a power, you'll
recall,
explicitly reserved to Congress under the Constitution.
Whether this decision will rein in the
EPA remains to be seen. The only guaranteed way to stop rule by
bureaucracy is to
bring back the rule of law. Only Congress can do that. If our
elected
representatives don't find the courage, then maybe we should
recognize the
power of the bureaucrat -and dispense with the dog-and-pony show on
Capitol
Hill.
Eric Peters is a Washington, D.C.-based automotive
columnist.
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