By JOHN FIALKA
Staff Reporter of THE WALL STREET JOURNAL

WASHINGTON -- The Supreme Court agreed to decide whether the
Environmental Protection
Agency can regulate emissions of air pollutants based on their
perceived impact on public health.

The case -- brought against the EPA by the American Trucking
Association, the U.S. Chamber of
Commerce and the states of Ohio, Michigan and West Virginia, among
others -- resulted in a novel
decision last year by a U.S. Court of Appeals panel here. It argued
that the EPA's powers to regulate
air pollution amounted to an unconstitutional delegation of authority
from Congress.

The Justice Department, pressing the appeal on behalf of the
EPA, argued that the case has "immense practical importance to
the health of the American public." The lower court's ruling, it
said, is a "radical departure" from previous court cases that
permit broad grants of regulatory authority from Congress to
federal agencies.

Edward W. Warren, lead counsel for the Chamber of Commerce
and other major plaintiffs, welcomed the Supreme Court's
scrutiny. He said he hopes the outcome will be a ruling that the
EPA must subject its regulations to a cost-benefit analysis.
"Otherwise you're handing over to EPA the keys to regulating
business in a limitless fashion."



                              Battling for Clean Air

Some milestones in the EPA's emissions-regulation case:

        November 1990: Congress amends the Clean Air Act authorizing
new standards for air
        pollution regulation.

        July 1997: The EPA sets tougher rules on industrial emissions
of soot and smog.

        May 1999: A three-judge panel of the U.S. Court of Appeals for
the District of Columbia
        rules the EPA's regulations are an unconstitutional delegation
of power that should be
        reserved for Congress.

        October: The full Court of Appeals rejects an EPA petition to
review the decision.

        January 2000: The Justice Department, citing health risks to
the American public, asks the
        Supreme Court to review the case.

        May: The Supreme Court agrees to take the case.



At issue is a July 1997 decision by the EPA's administrator, Carol
Browner, to impose tougher
restrictions on emissions of fine particles of soot and of ozone,
which is a gaseous ingredient of urban
smog. In making her decision, preceded by a lengthy scientific
review, Ms. Browner said the
pollutants impaired the health of children and elderly with breathing
problems. Because of the legal
challenge, however, the rules have never taken effect.

Ms. Browner defended her agency's right, under the Clean Air Act, to
make such determinations on
health effects alone. Environmental groups and states such as New
Jersey and Massachusetts, which
consider themselves victims of air pollution from the South and
Midwest, argue that the EPA's
interpretation of the law is what Congress intended. Vickie Patton, a
senior attorney for Environmental
Defense, a New York-based environmental group, said the stage is set
for "one of the most important
clean-air cases in our nation's history."

The lower court's ruling, written by U.S. Circuit Court Judges
Stephen F. Williams and Douglas H.
Ginsburg, resurrected a test that the Supreme Court had abandoned in
the 1930s. The ruling
prohibited Congress from delegating vaguely worded tasks to federal
agencies. The two judges wrote
that the regulations, scheduled to be phased in over the next five
years, "failed to state intelligibly how
much [pollution] is too much."

The Justice Department argued that the theory of unconstitutional
delegation conflicts with a long line
of recent Supreme Court decisions upholding the development of
wide-ranging regulatory powers by
federal agencies, based upon their interpretation of the law.

A ruling in the case is expected next year.

Write to John Fialka at [log in to unmask]

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