-Caveat Lector-
APPLYING THE CONSTITUTION TO THE EPA
Critics ranging from business leaders to constitutional scholars
are lauding the U.S. Court of Appeals for the District of
Columbia for finally reining in the Environmental Protection
Agency. By a two-to-one decision, the court last week found that
agency officials had overstepped the bounds of constitutional
authority in issuing regulations under the Clean Air Act.
The main issue involves whether unelected EPA bureaucrats should
be allowed to make laws, or whether lawmaking is the prerogative
of Congress -- as the Constitution states.
o The court referred to a 1928 Supreme Court decision known
as the "non-delegation doctrine" which is designed to
"ensure to the extent consistent with orderly governmental
administration that important choices of social policy are
made by Congress, the branch of our Government most
responsive to the popular will."
o Thus, the Appeals Court held that Congress had violated
the Constitution's separation of powers by delegating too
much of its authority to the EPA.
o If upheld on appeal to the Supreme Court, critics hope the
doctrine will be applied to activities promoted by the
Americans With Disabilities Act and regulations emanating
from the Occupational Health and Safety Administration.
The EPA's sweeping ozone and particulate matter rules were
already a source of scientific contention:
o The agency's science advisory board concluded that the new
ozone rule did not deal with any new significant risk not
already addressed by the rule it replaced.
o The board was unable to identify any proper level of fine
particulate matter to regulate.
o It was widely recognized that extensive research was
necessary to develop any implementing regulations for
particulate matter.
o There was no unrebutted evidence that the ozone rule could
cause more harm than good to public health.
Sources: Editorial, "Red Light for Regulators," and C. Boyden
Gray and Alan Charles Raul (lawyers), "The Courts Thwart the
EPA's Power Grab," both Wall Street Journal, May 18, 1999.
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