When the court invade the board room

Despite the famous quip that the "bucks stops" on the President's desk, final decisions about regulating American land more and often today on the judge's bench.

This week the US Supreme Court opened its new term by agreeing to hear arguments over federal regulation in the strip mining and textile industries. The cases are only the top of a giant legal mountain of lawsuits that has grown out of governmental rules.

In all, the federal government now has 58 regulatory agencies that each year aboOf these, the White House reports that 150 have major economic effects. The estimated cost of meeting new health, safety, and environmental standards: $100 billion to $150 billion a year.

"Lawyers are expensive, but the regualations are more expensive -- which means that more and more end up in court," says Jerry L. Mashaw, a professor of administrative law at Yale University.

In fact, regulatory lawsuits now are so common that the Environmental Protection Agency (EPA) recently has set "race to the courthouse" rules for appealing its clean water regulations. (Environmentalists and industrial groups had been racing each other to file suit, since the first to file could pick the court they thought would be most sympathetic. Until the rules were set, lookouts from both sides stalked the EPA offices waiting for decisions to be signed so they could file their appeals.)

The Supreme Court this term may give some answers to questions about how far federal regulatory agencies may go in controlling industry.

In two related cases, the cotton and textile industries are charging that the Occupational Safety and Health Administration (OSHA) overstepped its bounds by setting costly new standards for cotton dust level in the nation's mills.

At issue before the court is whether the federal agency must taken into consideration both the costs and the pssible benefits of its regulations before issuing them.

The new cottond dust standards, set in 1978, would call on the industry to install ventilation equipment and, in some cases, require face masks so workers would not be exposed to more than 200 to 750 micrograms of "respirable" dust per cubic meter of air. Existing standards allowed 1,000 micrograms of dust. Medical research has cited cotton dust as a cause of disease known as "brown lung.'

Gaylon Booker, an economist for the National Cotton Council, which is suing OSHA, says the new rules would cost the industry about $2.5 billion to comply with. That cost would raise the price of cotton out of competition with foreign and synthetic fibers, he says.

"We're going to see some of the US cotton industry shipped abroad," if the regulations are upheld, he predicts.

The cases, filed by the Cotton Council and the American Textile Manufacturers Institute, offer the Supreme Court a second chance to rule on whether an agency must take costs and benefits into consideration. During its term last year the court ducked a similar question when overruling stringent OSHA standards on the level of worker exposure to benzine, an industrial chemical.

In another major regulatory test, the strip mining industry is challenging rules that require land to be restored to the "approximate" contour it had before mining. The requirement hits hardest at firms in Appalachia, where coal is mined on steep slopes.

Mining operators have maintained that they could make use of the land flattened by surface mining. But the government counters that the cuts in the hillsides damage the environment unless the land is carefully backfilled to its former contour.

Portions of the 1977 Surface Mining and Control Reclamation Act have been struck down by lower courts ruling that the federal government has stepped into regulation that should be left to the states. The mining companies also are asking the Supreme Court to rule that the government has "taken" their property under requirements of the law without giving them anything in return.

The case, which is in part a states' rights question, calls on the high court to cut back federal authority -- a move it has rarely made. "They've been a centralizing, rather than a decentralizing, court," says Professor Mashaw of the current justices.