KEEPING CONTROL OF THE BUREAUCRATS
By David Schoenbrod, Financial Times, June 19 2000

The US Supreme Court's announcement that it will hear Browner v American Trucking Association is of vital importance not just to American business but also American democracy. At stake is the question of whether a federal agency can increase its own power. The agency concerned is the Environmental Protection Agency and the power it claims for itself is immense. If the EPA wins the case, ambitious bureaucrats at all agencies will have licence to increase their hold on society without prior approval from Congress.

The 1970 Clean Air Act entrusted the EPA with the responsibility of achieving health-based air quality standards, but that power is on the wane as those standards are met. The EPA's response has been to change the standards. Tougher restrictions on ozone and particulate matter issued by Carol Browner, its administrator, require businesses, and state and local government, to spend hundreds of billions of dollars without any realistic prospect of meeting the new targets in the foreseeable future.

The standards also give the EPA much of the power it needs to reduce US energy consumption as required by the Kyoto global warming treaty. The agency supports the treaty but lacks the power to implement it: President Bill Clinton refuses to submit it to the Senate, where it faces almost certain defeat at the hands of both Democrats and Republicans. The EPA argues that the new standards are essential to protect the public from dangerous pollutants. Yet the agency's actions suggest it is driven by a different agenda. In issuing the ozone target, supposedly to reduce the incidence of lung irritation, it refused to consider evidence suggesting that the new standard would actually harm health. The ozone at ground level helps protect us from skin cancer. Credible scientists argued that the slight increase in the incidence of skin cancer that would come from meeting the new standards outweighed the even slighter benefits from reducing the amount of ozone people breathe.

When the EPA deemed this evidence irrelevant, it was pulled up short by the Court of Appeal in Washington. The court held that the agency acted illegally because its interpretation of its statutory mandate was so elastic that it gave itself almost complete discretion to decide how clean to make the air. The solution, the court said, was for the EPA to search in the Clean Air Act for a meaningful limit on its power.

That task is far from impossible, although inimical to the EPA's ambitions. The Clean Air Act, written in the late 1960s when killer smogs were not such a distant memory, tells the EPA administrator to set the health standards to protect the public health allowing an adequate margin of safety. The public health profession then was not in practice to make the world antiseptic or totally risk-free, which is impossible in any case, but to guard against threats that were statistically significant and meaningful.

Read in this context, the EPA was originally authorised to issue standards that it has shown are necessary to guard against significant threats to public health. That still leaves the EPA with scope to evaluate the risks discovered by science, but the agency would have to show that it had met a standard of law. By contrast, under the agency's interpretation, it can always increase its power to equal its ambitions because it can always be argued that breathing a little less pollution is a little safer. The EPA sought to free its ambitions from the rule of law by asking the Supreme Court to overturn the Court of Appeal decision. It may well be sorry it asked. Its desire to determine the scope of its own mandate clashes with the Constitution's requirement that Congress take responsibility for the scope of the regulations imposed on society.

If Congress could merely point to some popular goal, such as clean air, without having to specify the degree to which it is achieved, then the agency could bespeak the length of its own sceptre. But Congress did not intend the Clean Air Act to grant such an open-ended and unconstitutional mandate. When the Supreme Court hears the case in the autumn, it can simultaneously honour the intention of Congress and the prohibition in the Constitution on open-ended mandates to agencies by insisting that the EPA obey the power-limiting legal standard in the Clean Air Act.

At stake is not only the huge expense the EPA would impose on society but the principle of democratic accountability. If bureaucrats can increase their power without prior approval of our representatives in Congress, the measure of their hold on society will be their ambitions, not our common sense.

The writer is a professor at New York Law School and an adjunct scholar at the Cato Institute.