CON: SAFER OZONE STANDARD REJECTED : OLD, LITTLE-USED DOCTRINE INVOKED BY COURT TO PROMOTE ITS POLITICAL AGENDA AND WEAKEN EPA, DESPITE AGENCY'S ADHERENCE TO PROCEDURE.

Byline: Timothy Malloy and Jonathan Zasloff

TWO weeks ago, a federal appeals court struck down the Environmental Protection Agency's proposed new standards for regulating ozone, popularly known as smog, suggesting that the EPA and the vagueness of the Clean Air Act forced its hand.

But closer examination of the court's decision reveals nothing short of a judicial shell game, threatening to undermine the federal government's ability to respond to critical problems of health, safety and environmental pollution.

The Clean Air Act requires that the EPA set pollution standards ``requisite to protect the public health.'' Thus for years, EPA rules have limited the ozone in the air we breathe to 0.12 parts per million.

Based on significant, recent medical and scientific data, in 1997 EPA concluded that the existing ozone standard no longer protected public health, and set a new standard of 0.08.

Without a doubt, setting the new standard raised very close and controversial questions of science and public health policy. And the court's decision to reject that standard raises another: What role should the court play in such cases?

For decades, the law has been clear: Judges should defer to the agencies on such matters, so long as the agency has a reasoned basis for its decision, reached after fair opportunity for public comment.

The EPA's actions in this case demonstrate the wisdom of this approach. The agency sought comment on a proposal to reduce the ozone standard to 0.07, 0.08 or 0.09. After massive outreach, including four formal public meetings, two satellite broadcasts, and numerous informal meetings and workshops, the EPA received over 50,000 public comments.

The EPA's decision is precisely the kind of action entitled to judicial deference. While some may disagree with EPA's ultimate conclusion, all interested parties had their say, and EPA clearly had the experience and knowledge to enable it to make a reasonable judgment.

Nonetheless, the court sidestepped the principle of deference, overturned the rule, and left a critically important public health regulation in limbo. We now face the prospect of more wasted resources, time and money as the litigation continues. Why would the court take such a destructive step?

The court's stated reason for its decision may pack an even greater wallop than the decision itself. The court said that the new air quality regulations were an unlawful ``delegation'' of congressional power to the agency. This seemingly technical phrase carries within it a potential assault on the way the federal government has operated since the Great Depression.

Before the New Deal, the judiciary was unremittingly hostile to all kinds of social and economic legislation, such as wages and hours rules and child labor laws. In order to keep agency regulation under such laws in a legal straitjacket, judges developed the ``nondelegation doctrine,'' which said that since Congress is the legislature, only Congress can write rules and regulations.

In practice, this meant that unless Congress gave specific instructions to agencies about regulatory content, then those agency regulations were an unconstitutional ``delegation'' of legislative power.

All of this probably sounds unfamiliar because the Supreme Court has not struck down agency rules as an unconstitutional delegation since 1935.

Courts allowed Congress to write laws giving agencies the power to write regulations, as long as they followed fair procedures such as hearing and responding to comments from the public, giving proper notice and explaining their decisions - precisely what EPA did here.

Why, then, did the court find it necessary to do something that the Supreme Court has not done in more than six decades?

The court worried not that the regulatory process was failing, but rather it was working too well. For the last two decades, conservative legal scholars have sought to resuscitate the nondelegation doctrine precisely because it would tie the hands of agencies that enforce environmental, consumer, and health and safety laws.

Little wonder, then, that the court's decision was written by Judges Douglas Ginsburg and Stephen Williams, two of the most brilliant - and most conservative - judges in the entire country. And little wonder that they cited no Supreme Court decision subsequent to 1935 to buttress their judgment.

Precisely because the nondelegation doctrine would hamstring the government's ability to respond to environmental, health and safety problems, these two judges saw it as the perfect vehicle to advance their political agenda. The court's decision, then, can be seen as the judicial equivalent of the Republican Congress trying to shut down the government.

If the public backlash against an elected Congress becomes too powerful to resist, then the next logical step is to re-create ancient constitutional ``doctrine'' accomplishing the same thing. Congressional conservatives sought to abolish the EPA and prevent the agency from enforcing environmental law, but failed miserably to persuade the public of their views.

The judges of this court, however, have no such obstacles.

What other important protections will these and other judges suddenly ``discover'' to be unconstitutional?

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Photo

Photo: From Beverly Glen Boulevard above Sherman Oaks, Van Nuys, and North Hollywood, the smog shows up as a dirty smudge getting denser toward the east.