US Supreme Court could include cost calculations when setting air standards

Frank O’Donnell, executive director of the Clean Air Trust fears the Supreme Court could side with industry and rule that the EPA must conduct risk assessment and cost-benefit analysis before setting new clean-air standards. This, argues O’Donnell, would repeal a key premise of the 1970 Clean Air Act: that science, not politics, should inform the public on the effects of air pollution on public health and welfare.

“Cost benefits calculated in advance of standards becomes political because the level ascribed to costs and benefits can be manipulated,” O’Donnell told edie. “Suppose they put a cost on the value of a person’s life. Who’s to say it would be $50,000 rather than $1 million? The person who makes that decision affects how the cost benefit would look.”

However, the US Chamber of Commerce, which was one of the lead parties that asked the Court to consider taking costs into account, told edie that it was “very encouraged” by the Court’s decision. “This case is not about science. Good science should always be a basis for public health standards. But here you have EPA making policy decisions among a range of choices. We will urge the court to rule that cost/benefit analysis and other forms of risk analysis must be come into play when EPA is deciding how much pollution control is too much. The issue here is not protection. It is over-protection.”

The Supreme Court has declined to review lower court rulings that clean air standards were to be based on science alone on four previous occasions – twice in 1980 and again in 1984 and 1991.

O’Donnell said the Supreme Court “would significantly depart” from the principle that Congress write laws, not the courts, if it ultimately sides with industry in this case. He also notes there is some irony in the Supreme Court’s timing. In March, Senators George Voinovich (R-Ohio) and John Breaux (D-La) introduced legislation that would achieve the same outcome sought by industry (see related story). However, Voinovich hasn’t succeeded in building support for his plan – it’s even been panned by progressive electric power companies.

The Supreme Court case will be argued in November, with a decision expected next year.