Air Date: Week of June 2, 2000

The U.S. Supreme Court has agreed to hear two challenges to the Clean Air Act this fall. Host Steve Curwood talks with Vermont Law School professor Pat Parenteau about the issues raised by the case brought by the American Trucking Association.

Transcript

CURWOOD: This is Living on Earth. I'm Steve Curwood. In a precedent-setting case, the United States Supreme Court says it will decide whether economic factors can be considered along with human health concerns when environmental standards are set. The high court will also decide whether the Environmental Protection Agency even has the authority to set clean air standards in the first place. The challenge was brought by the American Trucking Association, along with the United States Chamber of Commerce. Pat Parenteau joins me now. He's a professor at Vermont Law School. Professor, this sounds like a double-barreled assault on the Clean Air Act. What are the issues at stake here?

PARENTEAU: The issues that are at stake are probably the most significant public health issues from the standpoint of air pollution that we have in the country. EPA is seeking to tighten the standards for both ozone, which is better known as smog, and small particulates. These are very fine particles that can create cancers in lungs in certain situations.

CURWOOD: Why would the Supreme Court hear this case?

PARENTEAU: One of the issues that has been raised is whether EPA was operating on what's called an unconstitutional delegation of authority, which basically means that Congress gave EPA too much power and didn't give the agency enough direction. The other issue has to do with whether or not EPA should take the costs of compliance with these health standards into account. The Clean Air Act makes it pretty clear that EPA is not supposed to consider costs when it sets the standards, but industry is arguing that it ought to take cost into account when it tries to figure out how to comply with the standard.

CURWOOD: Okay, you're a law professor. If you were presenting the case for why economics should be considered under the Clean Air Act, what would you say?

PARENTEAU: I would say that there are many different ways to achieve health-based standards, and some of them are going to be more expensive than others. So, you might make the argument that if EPA will be flexible in the ways that industry can comply, you can achieve the health-based standards at a lower cost, and that should make everybody happy.

CURWOOD: So why not do this? What's the argument against this flexibility?

PARENTEAU: EPA is going to say that the flexibility comes in when the states adopt plans to implement the new standards, and that EPA should not pre-empt by setting specifically what kinds of strategies should be used to achieve these standards. So, the Supreme Court, which recently has been showing more concern about this Federalism principle, is going to be faced with an interesting question, which is, should it rule that EPA should take cost into account in determining what strategy should be used? That would be in direct conflict with some earlier decisions it has rendered, saying the federal government ought to defer to the states on questions like that, and let the individual states come up with more creative and innovative strategies.

CURWOOD: What are the health consequences here if the Supreme Court agrees with the truckers on the health standards?

PARENTEAU: EPA's scientific evidence, which was backed up by an advisory committee that the EPA consulted, they are convinced that the higher standards that are in existence today are causing respiratory problems for people, and the health effects are impaired breathing, limitation of activity on days when the air quality is poor, and aggravation of any kind of sinus problems or respiratory problems. These are things that affect people's lives, and EPA is convinced that unless we lower these standards, people are going to unnecessarily suffer these kinds of consequences.

CURWOOD: Pat Parenteau is an environmental law professor from Vermont Law School. Thank you, sir.

PARENTEAU: Thank you, Steve.