Jewish World Review May 24, 1999 /9 Sivan 5759
(JWR) ---- (http://www.jewishworldreview.com)
The ruling came in response to clean-air standards handed down two years ago by the Environmental Protection Agency. Those guidelines would have reduced by a third the acceptable levels of ozone in the atmosphere and regulated airborne emissions larger than 2.5 microns in diameter -- less than one-tenth the width of a human hair.
The rules raised a ruckus for two reasons: First, they could do wicked damage to the economy; second, they seem to have been conjured out of some fevered Luddite's imagination.
The proposal promised to cut a wide swath through modern life: It could have outlawed backyard barbecues, gasoline-powered lawnmowers, the plowing of fields and even the wonderful tradition of throwing a log on the fire.
While the EPA estimated the cost at a touch over $18 billion a year, economists at the Center for the Study of Public Choice at George Mason University pegged the price at closer to $380 billion.
Either way, there's no evidence the strictures would have done anything more than outlaw certain varieties of fun. In fact, when the EPA started circulating the proposal for comment within the Clinton administration, economists and scientists treated it as target practice. It took hostile fire from the Office of Management and Budget, the departments of Agriculture, Commerce and Treasury, the president's Council of Economic Advisers -- even the EPA's own scientific advisory board. They complained that the agency couldn't identify any specific medical reason for the change in law and that its economic analysis was buncombe at best.
To take but one example, EPA grandees predicted their new rules would produce a dramatic reduction in childhood asthma. It turns out, however, that most kids get asthma not because of urban smog, but because of rat scat.
While researchers failed to find any health benefit in the proposed regulations, there was evidence that the changes could produce a skin-cancer epidemic since ozone screens out ultraviolet radiation. An internal EPA study predicted that the "cleaner" air required by the new edicts could produce 3,000 to 4,000 new cases of non-melanoma skin cancer annually. The Department of Energy developed an even more nightmarish scenario: 2,000 to 10,000 new non-melanoma cancers, 130 to 260 melanomas and as many as 28,000 new cases of cataracts.
Between those concerned about economic decimation and gruesome death, a battalion of critics made common cause to kill the rules. They succeeded, sort of: The court invalidated the new dust and ozone regulations and ordered the EPA to try again. But the opinion also provided a powerful cautionary warning to Congress.
The court hinted that the real culprit was not the EPA, but the Clean Air Act, as amended in 1990. The law includes the vague injunction that the agency formulate clean-air standards "requisite to protect the public health ... (with) an adequate margin of safety" and conduct a review every five years so it can make "such revisions ... as may be appropriate." Statutes specifically forbid the enviro-bureaucracy from weighing potential costs and benefits.
The judges slapped the EPA for its "arbitrary and capricious" behavior in the matter, but didn't say the agency had no authority to issue economy-altering regulations. This just happened to be a classic case of using heavy-handed force to solve a nonexistent problem. At the time the agency issued its dust and smog decree, dust pollution had fallen 25 percent in a decade, smog concentrations had declined 15 percent and the number of "ozone emergency days" had plunged 73 percent.
One lawyer involved in bringing the suit describes the opinion as "a BFD," which no doubt is legal Latin for "very important." Federal regulators lately have decided that they may issue ukases at will, regardless of what the law, the Congress or the public thinks. Last week's court ruling declares that regulators may not function as lawmakers, since the Constitution already delegates that responsibility to Congress.
But that means Congress must do its part by protecting its turf. Regulators have run amok because vague laws drafted on Capitol Hill all but order them to -- for instance, in the Clean Air Act's prohibition against balancing costs and benefits.
A few rule-happy bureaucrats at the EPA almost succeeded in outlawing cut grass, burgers on the grill and romantic evenings before a fire. They failed not because the law won't let them, but because they played too loose with the rules.
Next time, they might do the job by the book and, unless Congress
intervenes to clean up the statute itself, there won't be anything we can do
to stop them from making us
05/14/99: Symbolism over substance