Reigning In The EPA

Last month, the Federal Court of Appeals held that the Environmental Protection Agency (EPA) has been acting in an unconstitutional manner. In a case brought by the American Trucking Association against the EPA, joined by an important amicus curie brief by C. Boyden Gray, Chairman of the Washington-based Citizens for a Sound Economy, the Court suspended EPA's 1997 air quality regulations. Part of EPA's 1997 edict required states to regulate microscopic particles, or soot, down to 2.5 microns. That's 28 times smaller than the width of a human hair. The EPA is required to articulate the "intelligible principle" that shapes its definition of unacceptable levels of smog and soot when writing new rules. However, the Court said in mandating its 1997 air quality standards, the EPA arbitrarily was "picking numbers out of thin air" and that its standards were "arbitrary and capricious." EPA's new rules would have: cost Americans at least $46 billion, destroyed business and not saved a single life.

Repudiation of EPA's wacko science was important but more important was the Court's finding that the section of the 1990 Clean Air Act, upon which the EPA relied in issuing its controversial regulations, amounted to "an unconstitutional delegation of legislative power." The court held that the EPA's actions violated the "nondelegation" doctrine that prohibits Congress from entrusting legislative power to government agencies without legal standards to guide the use of the delegated power. In other words, the EPA was making laws rather than enforcing them. But other government agencies are guilty of the same thing so the Court's decision could have far-reaching implications. The decision also sends a message to Congress that it should do its job of legislating rather than passing it off to politically unaccountable agencies and courts.

With their typical economics misunderstanding, the news media described the Court's decision as a major victory for a broad range of industry groups from trucking companies to electric utilities who fought the tougher air quality rules as too expensive and ill-conceived. We can label it a business victory for the trucking and utility industries only if the rest of us don't benefit from lower cost trucking and electricity. The decision is really a victory for Americans who expect environmental regulations to be based on non-bogus science and expect Congress and federal agencies to behave constitutionally. But I'm afraid there is a large percentage of Americans who want just the opposite as a means to accomplish their agenda to control the lives of others.

The past year hasn't been a good one for the EPA; they've faced another stunning rebuke. Last July, U.S. District Court Judge William L. Osteen found reason to nullify the EPA's 1992 report that claimed second-hand smoke to be a class A human carcinogen and cause of lung cancer. He found that the EPA knowingly, willfully and aggressively put out false and misleading information. In fact, if a graduate student or a professor wrote a report similar to the EPA, he would face repudiation by his colleagues, charges of academic dishonesty and summarily dismissal from the university.

But I don't know whether Americans want the EPA and Congress to be honest. You say, "What do you mean, Williams?" There are numerous laws, restrictions and regulations based upon the EPA's fraudulent report on second-hand tobacco smoke. How many Americans do you think would say, "Hey, now that we know that EPA 1992 report was a fraud, let's repeal all those laws and regulations based upon it."? I'm guessing most would say, "I don't like the smell of cigarettes and if it takes government fraud and duping the public to get rid of it, so be it."

Walter E. Williams
June 3,1999
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