The regulatory state scored a major victory when a federal appeals court recently concluded that procedure matters far more than scientific fact in environmental rulemaking. Unless Congress intervenes, the ruling will prove enormously costly to Michigan workers and industry without yielding commensurate benefits. 

The case involves stricter air quality standards proposed by the Environmental Protection Agency (EPA) in 1997. Critics, of which there are many, challenged the new restrictions on soot and smog as "arbitrary and capricious," that is, lacking scientific merit. But after five years of legal wrangling, a three-judge panel of the U.S. Circuit Court of Appeals in Washington, D.C., ruled on March 26 that the agency's proposed regulatory standards fall within the broad deference granted EPA under federal law.

By no means did the court endorse the revised standards as scientifically sound. The justices, in fact, acknowledged the deep uncertainties relating to the environmental and health effects of ground-level ozone (smog) and particulate matter (soot), while also noting that the agency's own scientific advisory board concluded that there exist substantial doubts about the rationality of the new standards.

But the court nonetheless concluded that "EPA has no obligation either to identify an accurate `safe level' of a pollutant or to quantify precisely the pollutant's risk prior to setting primary National Ambient Air Quality Standards. . We have expressly rejected the notion that the Agency must `establish a measure of the risk to safety it considers adequate to protect public health' every time it establishes a National Ambient Air Quality Standard."

In other words, so long as EPA can summon an argument to justify new standards, dispositive or otherwise, the court defers to the agency's decision-making authority. Thus we are subjugated to regulatory excess in which politics, not public health or environmental necessity, rules. But this abandonment of cause and effect ultimately invites regulatory tyranny.

 "The way the law is now written," said former EPA official Dr. Milton Russell, "it is almost as if a cancer were equivalent to a cold, one expected cancer were indistinguishable from an epidemic and as much social disruption . . . and economic costs were to be imposed to avoid the one as to avoid the other."

The stricter standards represent a dramatic reduction in allowable emissions. By agency estimates, compliance costs would exceed $9 billion annually, while industry pegs the price tag at $90 billion or more to install smokestack scrubbers, re-engineer automotive engines, reformulate industrial solvents and comply with a slew of other dictates.

As an industrial hub, Michigan would rank 10th in estimated compliance costs of $2.6 billion annually. This translates into the loss of some 10,000 jobs, according to economist Anne E. Smith, who calculated the economic impact for the Reason Foundation. Meanwhile, billions of dollars would be diverted from more pressing health and safety risks as well as economic development and attendant job creation.

Federal law requires the EPA to review air quality standards every five years to "protect the public health" and maintain "an adequate margin of safety." However, the agency is not compelled to change the standards unless new evidence shows existing controls to be insufficient. Yet while air quality has vastly improved in recent years, the agency nonetheless revised the standards by ordering a 33-percent reduction in smog-forming compounds (from 0.12 parts per million to 0.08 parts per million), while also imposing tougher controls on particulates measuring 2.5 microns or less (dust, pollen, dirt, mold, and the like).

Proponents argued the necessity of acting even in the face of scientific uncertainty. But this so-called "precautionary principle" also carries risks for which advocates fail to account. As explained by Dr. Elizabeth M. Whelan, president of the American Council on Science and Health, "[The Precautionary Principle] distracts consumers and policy makers alike from the known and proven threats to human health . . . and assumes no health detriment from the proposed regulations and restrictions. And it allows environmentalists to portray those disagreeing with them as indifferent or even hostile to the public health and perhaps motivated by a desire to profit from whatever product or process is held to be risky."

That the regulations have been embroiled in litigation for five years reflects the lax construction of the Clean Air Act—congressional irresponsibility, in other words. Apparently loath to tackle technical and political complexities, lawmakers routinely craft ambiguous statutory language that effectively shifts responsibility to regulators who invariably prove incapable of curbing their bureaucratic ambitions. (The U.S. Supreme Court, in an earlier ruling in the case, found that EPA failed to properly consider the benefits of ozone in blocking the sun's cancer-causing ultraviolet rays, constructed an unconstitutional implementation plan, and crafted an "arbitrary and unlawful" standard to regulate larger particulates.)

But when Congress cedes its lawmaking powers to unelected bureaucrats, government ceases to be the people's servant and becomes instead their master, as the appellate court decision makes plain.

Some lawmakers insist that Congress cannot possibly master the intricacies of environmental regulation. But that's precisely the point. Congress must be made to pick and choose from among the most pressing problems facing the country and craft common sense responses. In this case, the most sensible step would be for lawmakers to exercise their little-used regulatory veto power to abolish the air quality standards. They should then revise federal law to rein in the EPA and other regulatory agencies, thus protecting the livelihoods and living standards of the people they purport to represent.

"When Congress cedes its lawmaking powers to unelected bureaucrats, government ceases to be the people's servant and becomes instead their master."

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