On
the Legal Status of Environmental Protection in the USA (Working Draft October
29, 2001)
by
Alvin Lowi, Jr. P.E.
The legal status of environmental protection regulations in the United States
was recently tested when the United States Supreme Court heard a suit to repeal
the Clean Air Act.*
________________________
* American Trucking Associations, Inc. and Chamber of Commerce of the United
States et al versus Carol M. Browner of the United States Environmental
Protection Agency, Docket No. 99-1426 Filed 11-7-00.
__________________________
The suit was brought against the United States government by a certain industry
coalition seeking relief from certain Environmental Protection Agency (EPA)
regulations on supposedly constitutional grounds. The plaintiff chose to
contest the enforcement of the EPAıs regulations as arbitrary and diseconomical
rather than to challenge environmental protection per se as a constitutionally
sanctioned function of the United States government.
Not surprisingly, the Court decided in favor of the government.**
______________________
** After all, notwithstanding the separation of powers theory, the Court is a
part of the government. This conundrum is memorialized in the rock lyric
"No matter who you vote for, the government always gets in."
_______________________
But its decision opened new loopholes for resisting the government's
regulations. Thus, the ruling favored a degree of freedom for those who
can afford it. (See Recourse below.)
The Court ruled that in passing the 1970 Clean Air Act, the legislation that set
up the EPA, Congress was within its constitutional powers as stated in Article
I, Section 8, specifically to "...provide for the common Defence and
General Welfare of the United States..." So, the Court assumed that
"environmental protection" by the federal government was legitimate
insofar as it was essential for the defense of public health and safety. Thus,
the Court supposed the Clean Air Act was a means of protecting the health of the
public from possible environmental insults traceable to human activity. The
Court did not support the converse and now popular application of the law,
namely to protect the environment from humans.
Strict Construction
The Supreme Court further decided that the Constitution of the United States
did not oblige Congress to require the EPA to take economic consequences into
account. The EPA would be allowed to mandate certain private behaviors provided
they had been proven effective in protecting public health and safety.
Strictly speaking, the Court could not have ruled otherwise on a question of the
economic impact of legislation. The Constitution of 1787 is mute on the
subject of economics. Never mind the fact (as we now know to be the truth)
that adverse impacts on the economy can have public morbidity consequences of
their own.
On the other hand, Amendment Article 4 (Fourth Amendment of the Bill of Rights)
prohibits the outright "taking" of property without compensation.
Clearly, this amendment evidences the founders rudimentary knowledge of
economics, specifically that such seizures have adverse effects on the nationıs
economy. Had the Court considered the contested regulations and
enforcements of the EPA in the light of the Fourth Amendment as well as the main
body of the Constitution, its decision might have recognized the merits of
equity contained in the plaintiffs' economic arguments.
Nevertheless, according to the doctrine of strict construction, the Courtıs
ruling is quite correct. Since the word "economic" appears
nowhere in the Constitution, a "constructionistic" court would not be
obliged to recognize economic cost as a consideration in reckoning such matters
as government protection of the general welfare. Apparently, when
contemplating environmental regulation, such a court overlooks the social
environment the economy -- focusing instead on the better-understood and
less controversial physical and biological notions of the environment.
Legally, therefore, the American ecosphere excludes social phenomena as if the
only scientific subject matter to consider were physics and biology.
The Court apparently considers that observations of the social sciences, such as
economics, are irrelevant to the government's environmental policy. In
principle, however, a proper regard for all established science at any time in
history is the key to progressive judicial outcomes. So far as economics is
established science, therefore, the Court should find itself obliged to demand
that economic effects be included in the equation for environmental
"justice" along with the factors generated by the other relevant
sciences.
Historical Perspective
At the time the Constitution was written, the word "economic" had
not yet entered the English vocabulary, at least not in its present sense. Not
even Adam Smith, arguably the worldıs first real economist, used the term
"economics" in his famous treatise on the subject known as Wealth of
Nations, published in 1776. In those days, Smith was known as a moral
philosopher. An "economist" might have been taken to be a
housewife, whence the derivation of "home economics."
While the framers may have been ignorant of the subject soon to be called
"economics," they were not dumb. Many of them were successful in
business and financial management. This urges the conclusion that they would
have been outraged to think that their descendents would reject the
applicability of any formal knowledge in this field merely because they could
not find it mentioned explicitly by its twenty-first century common language
name in that eighteenth century document.
Similarly, the word "science" did not enter the lexicon until the
nineteenth century. Yet the authors of the eighteenth century United States
Constitution were not ignorant of the kinds of knowledge this word would come to
designate years later. Studies in the "natural philosophies," so
evident in the lives and writings of Franklin, Paine and Jefferson, testify to
that.
As to how the authors of the Constitution might have regarded the currently
fashionable notion of environmental protection, the Court did not speculate.
Had they done so, it is likely the justices would have disdained environmental
protection legislation, whatever that may mean, on the grounds that such
lawmaking is not a legitimate function of political government. It is one
thing to provide for the common defense and general welfare of the United States
consistent with Article I, Section 8 of the Constitution. This means
attending to people, specifically the people of the United States whom the
government was set up to serve. It is yet another thing entirely for
government to protect the environment from people. The idea that the Earth needs
protection from humans would have seemed absurd to the founders. Whatever their
concerns for the environment might have been, which is unknown, it is likely
they would have been indistinguishable from good housekeeping, neighborliness
and associated hygienic practices. "Environmental protection" would
have seemed alien to them if not also presumptuous, arrogant, and unnatural.
Quite possibly the political ideas underlying the formation and inauguration of
the EPA in 1970 would have appeared to the likes of Benjamin Franklin as
theatrical and theological, as in the playing of God to a congregation of
believers. It was such posturing in another context that brought forth from
Benjamin Franklin this sarcastic jibe:
"The grand leap of the whale up the Fall of Niagara is esteemed, by all who
have seen it, as one of the finest spectacles in nature."***
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*** Bartlettıs Familiar Quotations, Thirteenth Edition, Little, Brown, &
Co., 1955, p.331a.
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Implications
The "strict constructionist" Court ruling on the EPA has two
implications for the EPA and its subjects. The Court upheld the
constitutionality of the legislative act that created the imperial EPA. At
the same time, it set aside certain of that agency's specific emissions
directives on the grounds that they had not been proven to be causally connected
to a constitutional purpose. The particular directive brought to question
was the ground-level ozone standard, infamous for suppressing electricity
generation in California and diesel engine production worldwide. As a
result, this Court ruling creates an avenue of initiative for environmentally
disadvantaged businessmen. However, it is an opportunity that is more
familiar to forensic scientists than to design professionals.
Apparently, the Court now holds the EPA to a cause-and-effect standard in
sanctioning its rules. This puts the burden of proof on the agency and presumes
innocence of anyone or any institution accused of an infraction. Thus, a
rational defense against the encroachments of this agency of government could be
mounted by anyone capable of mastering the applicable science and recognizing
supporting or falsifying evidence when presented. This policy could
substantially temper the EPA's zeal for public rulemaking and enforcement
proceedings.
With respect to ozone, oddly enough, specific damage to public health due to
corrosion, intoxication or infection from exposure to it at any particular level
of ambient concentration has never been proven, either rationally or
epidemiologically. Indeed, it might be easier to show with confidence that
degradation of living standards caused by the economic suppression of enterprise
leads more predictably to public health decrements. A robust economy affords
environmental conservation as well as nutrition, personal hygiene and medical
care as are instrumental in achieving a low mortality rate and a long life span.
There is a bona fide issue with the Court regarding its dismissal of economic
factors as being constitutionally relevant to the settlement of environmental
regulations. Economists and social scientists can show that economic
insults have similar public health consequences in the real world as physical,
chemical and biological ones. So it would seem that to the extent economic
degradation due to law enforcement has predictable public health decrements,
economics is relevant to the determination of the constitutionality of national
emissions regulations.
Recourse
Until now, the EPA has managed to prevail over industry without proof of the
public health benefits of its regulations. It has exploited public health
phobias and esthetic preferences to maintain its position of authority using an
emissions-controls subterfuge. Now, the Court demands that the EPA produce
scientific evidence to show how its tailpipe emissions enforcement standards
relate to the control of ambient ozone concentrations in particular places, and
then explain how that feat reduces a particular threat to public health.
The Court did not rule on fine particulate matter or other ambient air
constituents that may have been emitted by human operated contrivances. But it
may be assumed that those standards are also subject to the same legal criteria.
Until the Agency proves its specific public health cases on grounds of
causality, its regulations lack constitutional authority, which ought to mean
the same thing as political legitimacy and legal standing. So says the
United States Supreme Court, sort-of.
Entrepreneurs interested in power generation opportunities will see how the
Supreme Courtıs decision offers some possibilities for relief from the risks of
EPA intervention. Such relief would entail harnessing appropriate
engineering, scientific and legal expertise organized for forensic as well as
design purposes. Such professionals would have to be competent in their
respective fields, of course. But in addition, their professional integrity
would have to be impeccable. This means they would have to be scrupulous in
avoiding compromise by any attachments to government payrolls, protections and
privileges, or any other such conflicts of interest. They would have to be
competent to testify in a court of justice before a jury of laymen as well as in
a science court before a jury of their technical peers.
The Supreme Court has placed a burden of proof on the EPA. This means the EPA is
legally obliged to scientifically connect its rules to specific public health
and safety consequences. Thus, an EPA defendant might contest the EPA in
court to get some relief from its regulations vis a vis his business risks by
becoming a plaintiff rather than a regulatee. This he can do when
encountering an agency order by demanding in court, properly supported of
course, that the agency "show cause." Then he can let nature take its
course. A fully informed jury might very well nullify the Clean Air Act
under these circumstances.
Economists could help level the playing field for businesses vis a vis
government by developing and presenting convincing evidence of how government
regulations have adverse economic consequences which results in impoverishment
having deleterious effects on public health. A simple example is the
plausible relationship between electricity blackouts and certain EPA
regulations. The hypothesis here is that arbitrary and stringent emissions
regulations in the face of electricity price controls and permitting constraints
lead to pronounced shortages in power generation capacity in a growing
population and economy. Such capacity deficits introduce unreliabilities in the
public electricity supply. "Rolling blackouts" administered by the
statesı electricity supply grid management agency come to mind. Consider
the consequences of random outages in electric service on highway traffic
controls and indoor lighting of buildings. Such sudden faults produce definite
hazards to public health and safety. More prolonged outages or shortages
affect building climate conditions, water supply, food and sanitary services,
which lead to seasonal and chronic public health problems.
It should be easy to prove that electricity failures harm the public nowadays.
And according to the Supreme Court's recent decision, EPA regulations are
supposed to prevent public health hazards else they are unconstitutional. That
they may actually hazard the public makes them criminal as well as
unconstitutional.
Consider a legal initiative to prove to the satisfaction of a federal judge and
jury that the EPA's draconian rules for limiting stationary source emissions
such as nitrogen oxides threaten public health and welfare as a result of
electricity system failures. It is not difficult to show how such EPA
rules handicap the generating industry. On the other hand, the EPA has a
real challenge to show how exceeding a particular level of nitric oxide in stack
gases will produce ozone concentrations in a given community air basin for a
sufficient duration of exposure to, in turn, cause specific, predictable public
morbidities.
Conclusion
The
Supreme Court recently found the government to be within its constitutional
proscriptions in attempting to regulate human activity for the purpose of
protecting air quality insofar as public health and safety is affected.
But it did not find the EPAıs emissions regulations had been justified on
public health and safety grounds. The Court rejected the argument that adverse
economic impacts of environmental protection regulations on industry were
constitutionally relevant. But it upheld the requirement that the EPA
produce scientific evidence of the alleged effects of certain human activities
on the physical, chemical and biological factors affecting ambient air quality,
and how these factors affected public health. As a result, businesses now
have access to a scientific defense against environmental regulatory harassment
giving them recourse to adversarial "show-cause" proceedings against
the EPA and, by extension, against its state and local siblings and the various
tax-exempt interest groups comprising those agenciesı
"constituencies." Although entrepreneurs are still disadvantaged
to the extent they must bear the cost of such litigation while their adversariesı
costs are generally borne by the indentured taxpayers, the Court has
nevertheless opened an avenue for a constitutional check on environmental
nazism.
Alvin Lowi, Jr., P.E.
2146 Toscanini Drive
Rancho Palos Verdes, CA 90275
310-548-8457 (Voice) 310-519-3700 (Fax)
e-main: alowi@earthlink.net
