Background. On May 14, 1999, in what is a clear victory in the cause of smaller government and more intelligent regulation, a U.S. Court of Appeals in Washington suspended the controversial air quality regulations issued by the Clinton-Gore administration in July 1997.
In the opinion of the Court, the adoption of the new rules was “an unconstitutional delegation of legislative power.” CSE Chairman Boyden Gray prepared the amicus brief that developed the delegation of legislative power argument relied on by the Court in making its landmark decision. Boyden Gray’s brief was funded in part by CSE’s education affiliate CSE Foundation.
The decision is a staggering defeat for the administration – and a major victory for CSE. According to Gray, “This is a very big decision. This has implications beyond the EPA rules. This calls into question a whole host of executive branch actions, especially the E-rate or so-called Gore Tax.”
Over the past three years, CSE activists throughout the country worked to defeat the Clinton-Gore power grab. More 14,000 CSE members wrote letters, made phone calls to and showed up at town hall meetings of targeted policy makers. CSE Foundation briefing papers forced EPA to twice revise its claims about the health benefits of the new regulations, and advanced the case that the EPA had not relied on sound science. CSE Chairman Gray participated in a nationally televised debate over the EPA’s rules with EPA Administrator Carol Browner.
The CSE membership made the case that:
The Clinton-Gore administration systematically has attempted to give un-elected bureaucrats powers reserved in the Constitution for the Congress.
Restoring the constitutional system of checks and balances is crucial in the battle to limit the size and scope of government.
The EPA ignored sound science when issuing these controversial rules.
The EPA ignored the devastating effects these new rules would have on economic growth.
EPA Rules Unconstitutional. At the center of the ruling is the “nondelegation” doctrine, a fundamental principle of administrative law that prohibits Congress from delegating legislative power to administrative agencies without statutory standards to guide the exercise of the delegated power. Under this doctrine, the EPA is required to articulate the “intelligible principle” that shaped the agency’s definition of unacceptable levels of smog and soot when issuing the regulations. Put another way, the EPA could not tell the Court how much air pollution is too much.
Show Me the Science. Supporters of the rules argue that the Court’s ruling had nothing to do with the scientific merit of the EPA’s case for such stringent new regulations. The science is good, they argue, but used badly.
They should take a closer look at the opinion, because the Court said exactly what CSE has said for three years – “show me the science.” The Court agreed with the plaintiffs that the EPA’s standard for soot and other airborne particles was both “arbitrary and capricious.” It is also arguable that having a scientifically defensible reason for the existence of the new rules in the first place would have prevented their demise in court.
Morning in America. The EPA is expected to take the decision to the Supreme Court. However, if this decision is upheld, it will reverberate through the halls of government. The ruling reaffirms the checks and balances, including proper delegation of authority, that ensure that government regulation is neither arbitrary nor overly intrusive.