Last Friday's ruling by the U.S. Court of Appeals in Washington that the Environmental Protection Agency (EPA) must promulgate its air quality regulations based on science and legislative intent, not folderolic flapdoodle, is an amazing reversal of fortune for one of the most out-of-control of all federal bureaucracies and a measured victory for rational policy and the democratic process.
Last July, under the dubious authority of the federal Clean Air Act, EPA unilaterally lowered its definition of permissible levels of airborne particulate matter (soot) and ground-level ozone, changing overnight the threshold at which localities could be found "out of compliance" with "healthful" air quality standards. Hundreds of areas all over the country that had been considered perfectly "clean" under the old standards were transformed overnight into sinks of pollution and thus subject to strict new emissions controls on automobiles, industry and business at costs of $60 billion annually or more, according to the president's own Council of Economic Advisers.
But none of what EPA trotted out was based on any kind of clear 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 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.
Theoretical benefits to severe asthmatics, the elderly and others with respiratory problems never proven by scientific means were touted at the time the new standards were announced. But EPA never proved these lower thresholds would actually benefit anyone. The agency appears to have pulled its numbers out of a hat.
For example, said the court, EPA refused to set a still lower exposure limit on grounds that more serious health effects are less certain at reduced exposures. Fine, said the court. But by that reasoning, it could have refused to lower limits below those associated with London's killer fog of 1952, when pollution contributed to 4,000 deaths per week. The agency, said the court, "rightly recognizes that the question is one of degree, but offers no intelligible principle by which to identify a stopping point."
The court acknowledged that the agency "will make the fundamental policy choices," which is not exactly a stirring appeal to the constitutional separation of powers. But it has to come up with a coherent principle for doing so, in part to ensure the agency doesn't apply its powers arbitrarily. If it can't find such a principle, then it has to go back to Congress to seek legislation ratifying its choices. EPA's actions amounted to "unconstitutional delegations of legislative power," according to the 2-1 majority opinion.
In other words, lawmakers - the folks responsible to voters - have to have some say over the writing of the country's environmental laws, not an unelected and unaccountable politburo of Washington's eternal ruling class.
Amen to that. And amen to the idea that in the future, Congress should ask EPA 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.
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