Of Soot, Birds, and the Law

Need to balance official authority over air and water

Federal and state laws to clean up the nation's air and water have been on the books for decades, and they've been remarkably effective.

But do these federal laws rest on constitutionally shaky grounds?

The US Supreme Court is weighing that question as it considers two cases that challenge federal authority to set strict limits for air pollution and to oversee wetlands. Its decisions are expected by the end of June.

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One issue not at stake here is whether environmental protection remains a priority in the United States. Rather, the issue is how to balance competing claims of authority over maintaining clean air and water.

Who rules on pollution?

In a case involving federal clean-air rules, the specific issue is the way Congress, and the agencies it empowers through law, go about the task of environmental protection. Legitimate questions are being raised.

Industry groups prevailed at the appellate-court level by arguing that Congress has unconstitutionally delegated lawmaking authority to the Environmental Protection Agency. The EPA was given wide discretion to set limits on pollutants like ozone and and airborne soot in line with its determination of public-health risks.

Unquestionably, this is broad authority. But what's the alternative? To have Congress write into law all the meaningful limits for pollution that can quickly become obsolete as scientific knowledge and technical capabilities improve?

The federal clean-air law has shown its pragmatic mettle for nearly 30 years. It's hard to argue now that Congress got it wrong or that it should suddenly take back authority over the details of regulation.

Industry lawyers also argue that federal rulemaking on pollution limits should take costs into account. The costs include financial strains on companies in reducing air emissions. Proponents of this approach say it better represents Congress's intent.

Yet it runs counter to past federal court decisions that have upheld the EPA's focus on public-health concerns alone. And Congress itself has turned back attempts to broaden that focus.

Even more to the point, the Clean Air Act already provides ways to consider industry's cost concerns. State and local officials can take such concerns into account as they devise ways to meet federal standards. If costs are excessive, industry and local government can petition Congress to waive some requirements.

This system has not pleased everyone over the years, but it has achieved a basic environmental purpose, and it allows for federal, state, and local interaction. It's a prime example of how the Constitution distributes power to prevent too much central authority.

Who controls migrating birds?

The water-pollution case before the court presents a clear instance of federal-state competition. It involves a claim of jurisdiction by the US Army Corps of Engineers over strip-mined land whose ponds and wetlands are home to migratory birds. A regional agency in Illinois wants to convert the area into a solid-waste landfill.

To boil down the complexities a little, the corps argues the migratory birds bring the ponds under the umbrella of the federal Clean Water Act. That act rests on the Constitution's grant of power to Congress to regulate interstate commerce. So, are birds that may draw hunters and nature lovers across state borders enough to invoke the "commerce clause"?

Now the issue really gets complex. Congress has used its commerce- clause power to pass all kinds of legislation. The court since 1976 has reined in that tendency. If it does so again in this case, are we likely to see attempts to roll back other laws that were based on controversial calculations of economic activity across state lines?

As they heard the case argued recently, and asked questions, the Supreme Court justices gave no indication they'd open that constitutional door. Instead, they focused narrowly on whether the Army Corps of Engineers was exceeding the intent of Congress in this particular instance.

Listen to the people's reps

It's a healthy trend that many legal arguments are being made these days against federal actions based on sometimes dubious claims of authority. It supplements a similar debate in Congress.

The high court will decide whether these two cases are worthy of further articulating the balance between federal and local authority. Sometimes the best way to honor the Constitution is to avoid a full-force interpretation of it and just let legislators decide.

(c) Copyright 2000. The Christian Science Publishing Society

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