In an unanimous decision, the U.S. Supreme Court handed the smokestack industries a major defeat in their effort to stop implementation of new standards for limiting ozone pollution.
When the U.S. Supreme Court first agreed to hear the industry cross-appeal in the combined cases WHITMAN v. AMERICAN TRUCKING ASSNS., INC., many Clean Air advocates and state clean air officials feared that the U.S. Supreme Court would reverse a twenty-year line of precedents holding that in setting air quality standards under the Clean Air Act, the Administrator of the U.S. Environmental Protection Agency is to consider public health alone and not costs of implementation of standards.
Today, the Supreme Court issued an unanimous holding in the case of Whitman v. American Trucking Association, affirming the principle established in the case of Lead Industries v. EPA that costs are not to be considered in EPA's determination of national ambient air quality standards.
The Supreme Court also rejected the D.C. Circuit Court of Appeals opinion that had rejected the Clean Air Act delegation of standard-setting authority was excessive. Instead, the Supreme Court affirmed that the Clean Air Act mandate to EPA to set national air quality standards at a level sufficient to protect public health with an "adequate margin of safety" did NOT violate the non-delegation doctrine and was a permissible delegation of power by Congress. The decision affirmed as sufficient, delegations of rulemaking power from Congress under occupational safety and health laws and other statutes requiring regulation "in the public interest."
The Supreme Court remanded the case to the Court of Appeals on one issue, which is the appropriate implementation timetable for the new, more protective, 8-hour ozone standard. While the Supreme Court did reverse and remand the decision on this point, the court invited EPA to put forward an implementation timetable, recognizing the authority of the agency to declare areas non-attainment under the new stricter standard and to set a timetable for meeting the newer standard in order to avoid sanctions.
The complete text of the opinion can be read and downloaded at Cornell University's Supreme Court website:
The open question, under the new Administration, is how promptly the Bush-Whitman EPA will react to propose a new implementation policy in order to implement the new eight-hour ozone standard. I will send more information concerning the agency response to the Court's decision as it becomes available.
Certainly, any further action by the Kentucky legislature to end or reduce vehicle testing programs should be ceased, since the Courts' decision, coupled with the previous court decision upholding the 8-hour ozone limit as scientifically defensible, makes it merely a matter of time before areas in the state such as Jefferson County and Northern Kentucky, and possibly others, may be redesignated by EPA as non-attainment under the new standard and be required to amend their State Implementation Plans to show how the new reductions will be achieved and maintained.