Alan Charles Rule*
President Clinton has decided in favor of the Environmental Protection
Agency's fabulously expensive new air pollution rules for ozone
(smog) and particulate matter (soot). EPA Administrator Carol M.
Browner has insisted that the Clean Air Act required her to disregard
cost-effectiveness in setting these new standards, even though she
concedes the agency is neither legally required to nor capable of
achieving zero risk for all individuals. It will now be up to Congress
and the courts to decide whether the president and the EPA acted
The smog and soot rules were proposed last November and will be
finalized this month, notwithstanding a barrage of criticism from
governors and mayors, large and small business and members of Congress
from both parties. In general, the critics have argued that the
rules will cost more than $60 billion a year, while the additional
health benefits are speculative or nonexistent.
The conventional wisdom in Washington accepted Browner's argument
that the Clean Air Act compelled the EPA to impose ever-tighter
pollution standards, no matter what the cost. But the act does not
command irrational results. The law states that the EPA shall protect
public health with an adequate margin of safety; it contains no
language prohibiting consideration of costs and benefits. Nothing
in the act forbade Browner from seeking to protect the public's
health efficiently and rejecting vastly disproportionate regulations
like the agency's ozone rule.
For instance, using the EPA's own estimates, compliance with the
new rules would cost society from $1 billion to $10 billion a year
on top of existing controls against smog, but would produce only
$100 million to $2.8 billion in extra health benefits. In the worst
case scenario, the EPA's estimates show the costs of the ozone proposal
outweighing the benefits by 100 to 1. By any standard, this proposal
is absurdly ineffective, and nothing in the relevant law or science
forced the EPA to adopt it.
Before the President made his decision to back the EPA, scores
of administration officials had heaped vitriol on the EPA's proposals
because of the grossly disproportionate expense and the substantial
scientific uncertainty about the health benefits. But too many of
these officials imagined that the EPA was legally unable to avoid
wasting billions of dollars of the public's money.
How could such a state of affairs happen? Like many situations
where it appears that Congress wrote an unreasonable law, the explanation
can be traced to a court decision. Here, the answer lies in a 17-year-old
D.C. Circuit opinion that affirmed the EPA's air pollution standard
for lead but denied the EPA any discretion to balance costs and
benefits in setting permissible levels. Nearly two decades later,
the Clean Air Act has been so successful in improving air quality
that future gains do not fit into this simplistic model. Unlike
lead, both ozone and particulate matter are considered "nonthreshold"
pollutants, which means that the EPA cannot keep 100% of the population
free from any adverse health effects. Unfortunately, some people
will be affected no matter how low the standard is set. The EPA's
decision on where to draw the line ought to reflect a policy judgment
that takes account of whether our children's money is being well
While the Clean Air Act does not specifically require consideration
of costs and benefits in making policy, another statute does. Congress
overwhelmingly passed the Unfunded Mandates Reform Act in 1995.
The act obligates the EPA, like every other agency, to analyze and
weigh the costs and benefits of its regulations, including the new
Clean Air Act proposals, and to certify that the final regulation
If the EPA applied this new law, the solution to this regulatory
miasma would be obvious. But don't hold your breath waiting for
Washington to see it.
*Alan Charles Raul has represented industry in connection with
EPA's Clean Air Rules. For more information about Mr. Raul, please
see the People on the Move feature on Page Two. Copyright@1997.
Los Angeles Times, Inc. Reprinted with permission.