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Supreme Court Ruling on Clean Air Standards
Is a Hollow Victory for EPA and Congress
The recent Supreme Court ruling on the validity of the 1997 National Ambient Air Quality Standards for ground-level ozone and particulates has been hailed as a victory for the Environmental Protection Agency and Congress. Maybe so, but it is a hollow victory. Congress needs to revise the Clean Air Act to address the fundamental issues in this case in order to produce a victory for the American people.
The Supreme Court Justices unanimously overturned the ruling of the D.C. Circuit Court of Appeals that found Congress had violated the Constitution's "non-delegation doctrine" by not providing adequate guidance for EPA to implement the new ozone and particulate standards. In a blow to industry plaintiffs, the high court also ruled that EPA does not need to consider costs and benefits when establishing its health-based standards for ozone and particulates. But EPA, the Supreme Court, and Congress have all failed to address the root problem.
Before the EPA proposed its 1997 standards for ozone and particulates, the Agency's Clean Air Scientific Advisory Committee (CASAC) wrote a cautionary letter to then-Administrator Carol Browner regarding the ozone standard. CASAC's chairman wrote: "The Panel felt that the weight of the health effects evidence indicates that there is no threshold concentration for the onset of biological responses due to exposure to ozone above background concentrations . . .. This means that the paradigm of selecting a standard at the lowest-observable-effects-level and then providing an 'adequate margin of safety' is no longer possible."
In plain English, CASAC was saying that setting the ozone standard at a level that protects public health with an adequate margin of safety (as called for in the Clean Air Act) is "mission impossible." Because there is some measurable impact from ozone even at levels created by combining nitrogen oxides with natural emissions of volatile organic compounds from trees, the prime directive of the Clean Air Act cannot be carried out.
The Appeals Court at least attempted to wrestle with this issue, concluding: "Thus the only concentration for ozone and PM [particulate matter] that is utterly risk-free, in the sense of direct health impacts, is zero…. For EPA to pick any non-zero level it must explain the degree of imperfection permitted…. [W]hat EPA lacks is any determinate criterion for drawing lines."
When some health effects (whether life-threatening or mild) can be expected as a result of exposure to air pollutants, the current wording of the Clean Air Act calls for the pollution to be eliminated. Surely, we wouldn't personally spend as much to fight a common cold as we would cancer. But CAA regulations imposed on private firms create costs that must be passed on to consumers as a hidden tax in higher prices if these firms are to remain in business.
The most sensible way to choose an acceptable level of air quality is to balance the health benefits derived from further reducing air pollution with the costs of doing so. But as the Supreme Court affirmed, the Clean Air Act does not allow costs to be considered when setting air quality standards; if it did, the new ozone standard would surely flunk this test.
When the new ozone standard was established, EPA estimated the benefits of fully attaining the standard to be between $1.5 billion and $8.5 billion a year, while the costs were estimated to be $9.6 billion annually. In other words, each dollar spent would produce only between 20 and 90 cents of benefits. Other estimates (by the Council of Economic Advisors and various conservative think tanks) projected at most one thin dime of benefits for each dollar spent.
Faced with the reality that it is impossible to specify an air
quality standard for ozone (smog) that protects public health with an adequate
margin of safety and that the new standard will cost Americans far more than
it can deliver in health benefits, what should Congress do? Congress should
muster the courage to rewrite the Clean Air Act to "protect the public
against unreasonable risk of important adverse health effects." And it
should require, not proscribe, consideration of the costs and benefits of
proposed air quality standards. These important changes would produce a real
victory for the American people rather than the hollow victory that EPA and
Congress realized from the Supreme Court's ruling.
Agree? Or disagree? Let NABE know what you think. Suitable replies will be published
Kenneth W. Chilton, Ph.D. is Distinguished Senior Fellow at the Weidenbaum Center for the Economy, Government and Public Policy at Washington University in St. Louis, MO.
All Op-Ed articles are the opinions of the authors and not of NABE.
...The most sensible way to choose an acceptable level of air quality is to balance the health benefits derived from further reducing air pollution with the costs of doing so. ...
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