Conscious Choice: Supreme Court to Decide Clean Air Challenge

November 2000 | News of the Earth

Supreme Court to Decide Clean Air Challenge

by Dave Aftandilian

Since 1970, when the original Clean Air Act was passed, Congress has entrusted the EPA with the job of setting limits on air pollution that safeguard both the environment and public health. Over the years the law has proven extremely successful; air quality has improved dramatically in many parts of the country thanks to its regulations. Of course, industry has not often simply done the right thing and cleaned up its act. Instead, major polluters have fought each new proposed set of rules tooth and nail, opting to place their bottom line above the public’s welfare every time.

The latest round of industry/EPA conflicts over clean air came to a head in 1997, when the EPA officially released its new limits on ozone and particulate matter under the National Ambient Air Quality Standards. Ground level ozone is the prime ingredient of smog — the dirty brown haze that casts its pall over cities like Chicago or Los Angeles on hot summer days (you may have heard summertime ozone alerts on the radio, warning people not to go outside). Ozone forms when nitrogen oxides and volatile organic compounds (VOCs) are released into the air and react with heat and sunlight. Where do these nasty pollutants come from? Motor vehicle exhaust, power plants, and other sources of combustion are to blame for nitrogen oxides, while motor vehicles (again), chemical plants, refineries, factories, certain newly manufactured products, and other industrial processes release VOCs.

Particulate matter — also known as soot — comes in two varieties. Coarse particles (those larger than 2.5 micrometers in diameter) are kicked loose as cars and trucks travel unpaved roads, gravel is crushed, etc. Fine particles (less than 2.5 micrometers) can’t be seen with the naked eye individually, but become visible en masse as dirty clouds belched out of industrial smokestacks, power plants, and diesel trucks and buses.

Both ozone and particulates are extremely hazardous to human health, especially for children, the elderly, people with asthma, and (in the case of fine particles) people with preexisting heart or lung disease. Even healthy adults who are playing softball, jogging, or doing some other moderately strenuous exercise outdoors in the summer can experience 15 to 20 percent reductions in lung function from exposure to low levels of ozone over just a couple hours, according to the EPA. Ozone also weakens sensitive plants, reduces agricultural yields of several major crops (such as soybeans, wheat, and cotton), and (through its constituent nitrogen oxides) contributes to fish kills and algae blooms in waterways. Not only can particulates turn white shirts hanging out to dry black and cover lawn furniture with a grimy film, but they also severely reduce visibility. For instance, in the eastern United States the current visual range is only fourteen to twenty-four miles, while it could be up to ninety miles without pollution. This is a growing problem in America’s national parks as well; one-third of the haze in the Grand Canyon blows in from Los Angeles, and 20 percent of the visibility reduction at Rocky Mountain National Park also comes courtesy of L.A. air pollutants.

After poring over hundreds of scientific papers and talking with scientific and medical experts, the EPA decided to implement stricter standards on the emission of pollutants that lead to smog and soot. This would be the first update of the smog standard in twenty years, and the first for the soot standard in ten years. Naturally representatives of the industries that would be affected by the new rules weren’t too pleased with the idea. First, they tried to get the EPA to back down. Then they tried blocking the new rules in Congress. But these tactics didn’t work. So when the EPA released the new standards in 1997 — standards that would protect the health of 125 million at-risk Americans, including 35 million children; prevent approximately 15,000 premature deaths a year; and avoid one million cases of significant lung function decrease in growing children and 350,000 cases of aggravated asthma — industry took the EPA to court.

Unfortunately, industry won. On May 14, 1999, a three-judge federal appeals panel threw out the new smog and soot standards in a two-to-one ruling, saying that the EPA had interpreted the Clean Air Act "so loosely" that it had unconstitutionally usurped Congress’s legislative power — an analysis known as nondelegation that hasn’t been used in legal circles since the time of the New Deal. The dissenting judge, David S. Tatel (a Clinton appointee; the other two justices were appointed by Reagan), said that the ruling ignored judicial tradition, including a half-century of Supreme Court decisions allowing wider delegation of congressional power to federal agencies. Nevertheless, the full U.S. Court of Appeals for the District of Columbia decided not to overturn the panel’s decision.

Now the case goes to the Supreme Court, which began its fall session last month. The court will be considering not just the nondelegation doctrine — as the Washington Post put it in a recent editorial, "the court is being asked to adopt the radical notion that Congress may not delegate the most scientifically intricate policy judgments to federal agencies capable of rendering them" — but also a counterappeal raising the issue of costs. Filed on behalf of the American Trucking Associations, the U.S. Chamber of Commerce, the National Association of Manufacturers, and other industry groups, as well as the states of Michigan, Ohio, and West Virginia (factories in midwestern states produce much of the pollution that follows the prevailing winds to pollute the northeastern states and Canada), the countersuit argues that the EPA must take into account costs of compliance, instead of just considering public health. Costs have, until now, been considered only at the later implementation stages. As the states of Ohio, Michigan, and West Virginia wrote in their pro-industry brief, "sound administrative policy indicates that cost in its broadest sense is always a factor in making a decision about the environment and public health."

Two recent decisions by the Supreme Court augur well and ill, respectively, for the Clean Air Act case. On the plus side, the court refused to hear Exxon-Mobil’s appeal over the $5 billion damage settlement against them for the Exxon Valdez oil spill in 1989, which polluted more than a thousand miles of coastline, killed tens of thousands of birds and marine mammals, and disrupted fisheries in the area. (Unfortunately, Exxon-Mobil has appeals on other grounds still in the works.) But in June of this year, the Supreme Court unanimously struck down a Massachusetts selective purchasing law intended to make it hard for companies that do business with the brutal military dictatorship in Burma to win state contracts. The court’s opinion said the Massachusetts law would "compromise the very capacity of the president to speak for the nation with one voice in dealing with other governments." This is a far cry from the 1980s, when similar purchasing laws helped bring down apartheid in South Africa, and sounds eerily similar to industry’s take on the case, as stated by a lawyer for the National Foreign Trade Council: "as trade becomes more important, it becomes more important for Congress to speak with one voice."

The Supreme Court’s decision in the Clean Air case will have profound ramifications for many federal (and perhaps state) regulatory agencies. The New York Times says that the case "offers what may be the most significant test of government regulation in decades." And Carol Browner, head of the EPA, stated that, "If the court were to say [the new smog and soot standards] violated the Constitution...you will throw on the head not just all of EPA’s work when it comes to broad health protection, but (other agencies) would be affected." Throwing out the new standards would also "threaten the health of millions of children with asthma, the elderly, and people with chronic health problems like emphysema and heart disease," according to John R. Garrison, CEO of the American Lung Association.

Arguments in the case are scheduled to be heard on November 7 — election day. This is rather ironic, considering that the next U.S. president may have the opportunity to appoint several justices to the Supreme Court, since many of the justices are at or near retirement age. Not surprisingly, George W. Bush has said that he admires the two most conservative justices on the court, Antonin Scalia and Clarence Thomas, and would appoint judges with similar opinions, while Al Gore has said that he admired the late William Brennan and Thurgood Marshall — two of the most liberal former Supreme Court justices. The Supreme Court is expected to rule on the Clean Air case by June of next year.

Extinction Crisis Accelerates

At the end of September, the World Conservation Union (IUCN) released its 2000 iucn Red List of Threatened Species. Since the last assessment in 1996, critically endangered primate species have increased from thirteen to nineteen, primarily because of overhunting for the "bush meat" trade in Africa and Asia; the number of threatened albatross species has increased from three to sixteen due to long-line fisheries (ships that trail miles-long steel cables with hundreds of baited hooks); and freshwater turtles, heavily exploited for food and medicinal use in Asia, went up from ten endangered species to twenty-four. Worldwide more than two hundred new animal species were added to the most critically endangered list, including eleven mammals, fourteen birds, and thirty-eight reptiles, bringing the total number of plants and animals facing a high risk of extinction to 11,046 — in almost all cases as a result of human activities, according to the IUCN.

"The fact that the number of critically endangered species has increased...was a jolting surprise, even to those already familiar with today’s increasing threats to biodiversity. These findings should be taken very seriously by the global community," said Maritta von Bieberstein Koch-Weser, IUCN’s director general. And Russell A. Mittermeier, president of Conservation International and chair of IUCN’s Primate Specialist Group, said that "The Red List is solid documentation of the global extinction crisis, and it reveals just the tip of the iceberg. Many wonderful creatures will be lost in the first few decades of the twenty-first century unless we greatly increase levels of support, involvement, and commitment to conservation."

While Indonesia, India, Brazil, and China have the most threatened species of mammals and birds, plants are in the greatest danger in South and Central America, Central and West Africa, and Southeast Asia. (However, work by the Nature Conservancy indicates that a third of the plants in North America are threatened, so we in the United States have no cause for complacency.) Lowland and mountain tropical rainforests are home to the most endangered mammal and plant species, according to the list, and therefore should have a high priority for conservation; freshwater habitats are also increasingly vulnerable, largely due to development of water projects such as dams, with many threatened fish, reptiles, amphibians, and invertebrates. With more than 61 percent of the world’s crayfish species, 29 percent of the world’s freshwater mussels, 17 percent of the freshwater snails, and 10 percent of the freshwater fishes, the United States hosts a significant portion of the world’s freshwater diversity — much of it extremely vulnerable to extinction because of the fragility of the habitats.

In the last five hundred years, human activities have driven at least 816 species to extinction (or extinction in the wild), 103 of them since 1800, "indicating an extinction rate fifty times greater than the natural rate," according to the IUCN. If you visit the Red List’s Web site, you can see for yourself which animals and plants we’ve lost forever. Paging through the list of 283 extinct species in the United States reveals that some of the names are familiar — Carolina parakeet, passenger pigeon — while many others are not. At least one Illinois species is extinct, the Illinois cave amphipod (Gammarus acheronytes). Reading through the list of scientific names, some of which don’t even have common names attached to them, is a depressing walk down a hall of human shame.

But the real point of the Red List is to draw attention to living species that are threatened, so that we can act now to make sure they are not added to the extinction list. Billing itself as "the world’s most comprehensive inventory of the global conservation status of plant and animal species," the Red List contains a wealth of information for scientists, policymakers, and the general public. On the Red List Web site you can look up any species to determine how threatened it is, how important it is to conservation, what the threats to it are, how many threatened species occur in any given country, and how many cases of extinction there have been. IUCN’s 2000 Red List provides better insight than ever before into the processes driving species extinction — and what we can do to stop them.

Resources

EPA’s Smog and Soot Standards

IUCN — World Conservation Union

IUCN’s Red List

U.S. Supreme Court

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