Last month, a federal court of appeals held that the Environmental
Protection Agency has been acting in an unconstitutional manner.
In a case brought by the American Trucking Association against the
EPA, joined in an important amicus curie brief by C. Boyden Gray,
chairman of the Washington-based Citizens for a Sound Economy, the court
suspended EPA’s 1997 air quality regulations. Part of EPA’s 1997 edict
required states to regulate microscopic particles, or soot, down to 2.5
microns. That’s 28 times smaller than the width of a human hair.
The EPA is required to articulate the “intelligible principle” that
shapes its definition of unacceptable levels of smog and soot when
writing new rules. However, the court said in mandating its 1997
air-quality standards, the EPA arbitrarily was “picking numbers out of
thin air” and that its standards were “arbitrary and capricious.” EPA’s
new rules would have cost Americans at least $46 billion, destroyed
business and not saved a single life.
Repudiation of EPA’s wacko science was important, but more important
was the Court’s finding that the section of the 1990 Clean Air Act upon
which the EPA relied in issuing its controversial regulations amounted
to “an unconstitutional delegation of legislative power.” The court held
that the EPA’s actions violated the “nondelegation” doctrine that
prohibits Congress from entrusting legislative power to government
agencies without legal standards to guide the use of the delegated
In other words, the EPA was making laws rather than enforcing them.
But other government agencies are guilty of the same thing, so the
court’s decision could have far-reaching implications. The decision also
sends a message to Congress that it should do its job of legislating,
rather than passing it off to politically unaccountable agencies and
With their typical economics misunderstanding, the news media
described the court’s decision as a major victory for a broad range of
industry groups from trucking companies to electric utilities, who
fought the tougher air quality rules as too expensive and ill-conceived.
We can label it a business victory for the trucking and utility
industries only if the rest of us don’t benefit from lower-cost trucking
The decision is really a victory for Americans who expect
environmental regulations to be based on non-bogus science, and expect
Congress and federal agencies to behave constitutionally. But I’m afraid
there is a large percentage of Americans who want just the opposite as a
means to accomplish their agenda to control the lives of others.
The past year hasn’t been a good one for the EPA — they’ve faced
another stunning rebuke. Last July, U.S. District Court Judge William L.
Osteen found reason to nullify the EPA’s 1992 report that claimed
second-hand smoke to be a class A human carcinogen and cause of lung
cancer. He found that the EPA knowingly, willfully and aggressively put
out false and misleading information.
In fact, if a graduate student or a professor wrote a report similar
to the EPA, he would face repudiation by his colleagues, charges of
academic dishonesty and summary dismissal from the university.
But I don’t know whether Americans want the EPA and Congress to be
honest. You say, “What do you mean, Williams?” There are numerous laws,
restrictions and regulations based upon the EPA’s fraudulent report on
second-hand tobacco smoke. How many Americans do you think would say,
“Hey, now that we know that EPA 1992 report was a fraud, let’s repeal
all those laws and regulations based upon it”? I’m guessing most would
say, “I don’t like the smell of cigarettes and if it takes government
fraud and duping the public to get rid of it, so be it.”