US Court of Appeals refuses to rehear EPA Clean Air case

The US Court of Appeals has refused to rehear the "smog and soot" case that the US EPA lost in May 1999, and which led to the striking down of the Agency’s revised Clean Air Act regulations.


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Only nine of the Court’s 11 judges reviewed the original appeals court decision. Because two did not participate in the decision, the original interpretation of the Constitution was left standing. The EPA emphasised that five of the judges agreed that the Agency’s clean air standards are constitutional. EPA will now seek a review of the case before the US Supreme Court.

Five judges, a voting majority, rejected the original opinion. The five found that “not only did the panel depart from a half century of Supreme Court separation-of-powers jurisprudence, but in doing so, it stripped the EPA of much of its ability to implement the Clean Air Act.”

The EPA claims this opinion puts it in a strong position for future legal action. “We believe the soot and smog standards put in place almost two years ago ultimately will stand and deliver as promised protection of the health of 125 million Americans,” the Agency said in a statement.

The latest decision follows the Court of Appeal’s ruling in May that the EPA’s revised National Ambient Air Quality Standards (NAAQS) for particulate matter and ozone were unconstitutional.

The National Chamber Litigation Center, the legal arm of the US Chamber of Commerce, and other business groups had filed suit with the Court in July 1997 challenging the revised standards.

The Chamber of Commerce argued the standards were not supported by sound science and that the EPA had failed to explain how the standards would protect public health with an adequate margin of safety.

According to the Chamber of Commerce, the agency’s proposed standards would have been “a crushing federal mandate” on US businesses. The American Trucking Associations (ATA) agreed that the regulations would have imposed major costs on them. EPA’s own estimates show that the cost of compliance for businesses would have been $45 billion per year, the Chamber of Commerce says.

“Once again, the court agreed with American business that the EPA standards were simply pulled out of thin air, and are not based on sound science,” said US Chamber of Commerce President and CEO Thomas J. Donohue. “It’s a victory for all businesses and a blow to the EPA’s efforts to extend its regulatory fingers where they don’t belong.”

In response to the decision, EPA Administrator Carol M. Browner said, “While we’re disappointed in today’s decision, we are encouraged that five of the nine judges who actually reviewed the case agreed with EPA’s argument that the Clean Air Act is constitutional and recognised the importance of the protections provided by our stricter air pollution standards.”

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