[Congressional Record Volume 145, Number 73 (Wednesday, May 19, 1999)]
[Extensions of Remarks]
[Page E1015]
From the Congressional Record Online through the Government Publishing Office [www.gpo.gov]

[[Page E1015]]



                 THE COURTS THWART THE EPA'S POWER GRAB

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                         HON. MICHAEL G. OXLEY

                                of ohio

                    in the house of representatives

                        Wednesday, May 19, 1999

  Mr. OXLEY. Mr. Speaker, many of us voiced serious concern when the 
U.S. Environmental Protection Agency approved strict new NAAQs 
standards affecting ozone and particulate matter levels. We warned that 
EPA was not basing the standards on good science, and indeed questioned 
whether the agency was running amok. This issue was of particular 
importance in my home state of Ohio, which faced billions of dollars in 
compliance costs with little prospect of any real benefit to human 
health and the environment. In a vindication, these rules have now been 
overturned by an appeals court. I commend the following Wall Street 
Journal article to the attention of my colleagues.

                 The Courts Thwart the EPA's Power Grab

               (By C. Boyden Gray and Alan Charles Raul)

       Last week a three-judge panel of the U.S. Court of Appeals 
     for the District of Columbia threw out the Environmental 
     Protection Agency's sweeping ozone and particulate-matter 
     rules. Citing a doctrine known as ``nondelegation,'' the 
     judges held that the EPA was exercising too much power, 
     effectively making rather than enforcing the law. The 
     decision could have far-reaching implications for all 
     government rulemaking, but it should not have come as a 
     shock. The EPA's usurpation of legislative power has provoked 
     significant controversy in recent years, and the only 
     surprise is how long it took for the courts to bring it under 
     control.
       Contrary to much prevailing opinion among both journalists 
     and lawyers, the nondelegation doctrine is not some arcane, 
     obscure and benighted legal relic of the pre-New Deal era. 
     The doctrine has been alive and well, serving primarily as a 
     canon of judicial construction to save otherwise overly broad 
     statutory grants or agency claims of legislative authority 
     from being held unconstitutional.
       The most important regulatory example of the doctrine's use 
     was in the Supreme Court's 1980 decision Industrial Union 
     Department v. American Petroleum Institute, which involved 
     the Occupational Safety and Health Administration's 
     regulation of benzene. The court was faced with a claim that 
     OSHA has untrammeled discretion to choose any regulatory 
     policy in the spectrum between not regulating at all and 
     imposing rules so stringent that they take an industry to the 
     brink of economic ruin. The justices used the nondelegation 
     doctrine essentially to rewrite the statute, limiting OSHA to 
     regulation of ``significant'' risks. A decade later, the D.C. 
     Circuit, in the so-called ``lock-out, tag-out'' decisions 
     written by Judge Stephen Williams (who wrote last week's EPA 
     decision as well), invoked the doctrine and the benzene 
     decision to place additional limits on OSHA.
       An accident of timing allowed the EPA to escape these 
     constraints for nearly two decades and retain its license to 
     choose between doing nothing at all and shutting down an 
     industry. The governing case (Lead Industries Association v. 
     EPA) gave the EPA this broad power because it was issued by 
     the D.C. Circuit five days before the Supreme Court's benzene 
     decision, and thus was unaffected by the latter ruling. But 
     it was only a matter of time before the EPA's power would 
     collide with the Supreme Court's limitations.
       For those subject to the EPA's unchecked authority, the day 
     of reckoning came none too soon. EPA issued these rules in 
     July 1997 despite:
       Its science advisory board's admonition that the new ozone 
     rule did not deal with any new significant risk not already 
     addressed by the rule it replaced.
       The board's inability to identify any proper level of fine 
     particulate matter to regulate.
       Universal recognition that extensive research was necessary 
     to develop any implementing regulations for particulate 
     matter.
       Unrebutted evidence that the ozone rule could cause more 
     public health harm than good.
       Unconstrained by any coherent principle, the rules were the 
     ultimate example of legislative horse trading. The EPA 
     declared that in order to defuse some political opposition, 
     it was going to exempt or favor its political allies, such as 
     farmers, certain small business, and that section of the 
     country (the Northeast) that provided political support for 
     the rules. ``The new rules do not reflect the inescapable 
     result of the available science, but simply the judgment of a 
     political appointee,'' said Rep. John Dingell (D., Mich.), 
     one of the principal architects of the Clean Air Act.
       The D.C. Circuit's decision to overturn these rules is not 
     inherently antienvironmental. It leaves the EPA with 
     considerable power to decide how much environmental 
     protection the country needs. The court simply said the EPA 
     is not omnipotent. Its power must be limited by 
     ``intelligible principles'' that Congress incorporated into 
     the Clean Air Act. The representatives who face the voters' 
     music must call the agency's tune.
       This decision does nothing to impair the EPA's 
     implementation of Congress's explicit directives in the 1990 
     amendments to the Clean Air Act, such as its recent auto and 
     gasoline rules. The real question is whether future policy 
     will be set by Congress or the unelected managers of the EPA. 
     At present, EPA has presented no reason for going beyond the 
     provisions of the 1990 Clean Air Act Amendments, which the 
     agency has not yet fully implemented. EPA's backdoor efforts 
     to regulate green-house gases will also come in for closer 
     constitutional scrutiny. Without express congressional 
     authorization to address ``global warming,'' the agency 
     should not be deciding for itself how to do so.
       The dissenting opinion in the D.C. Circuit decision closed 
     with the observation that if the states had difficulty 
     implementing the new EPA standards, they could go back to 
     Congress and ask for repeal. But this formulation turns the 
     Constitution on its head. It's not Congress's job to review 
     EPA initiatives, but rather the EPA's job to carry out 
     congressional initiatives. And it's the courts' role to keep 
     the other players honest.

     

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