First, this is not a general defect in all of our environmental laws. I have seen some press reports suggesting that the whole structure of environmental law has been undermined. Not so.
For instance, the Safe Drinking Water Act has long dealt with contaminants that cause cancer and for which there is no threshold for the adverse health effect. When Congress enacted the Safe Drinking Water Act in 1974 it established a clear principle for setting standards in these cases. Set the goal at zero and set the enforceable standard as close to zero as can be achieved using best available treatment technology.
Most of our laws use comparable technology-based principles for standard setting. Even within the Clean Air Act itself, the first phase of standards for toxic air pollutants are determined based on best technology and the second phase, which is health-based, has a one-in-one-million trigger.
Far from being a general defect in environmental law, I believe the vagueness the Court found for these national ambient air quality standards is almost unique. If there were a threshold for the health effects of ozone and particulate matter as there are for other ambient air pollutants, EPA would have easily translated "requisite to protect public health with an adequate margin of safety" into a clear standard. It is the newly appreciated absence of a threshold for the health effects that make these ozone and particulate standards difficult to justify using the statutory language of the Clean Air Act.
Second, I agree with the Court as it expresses its discomfort with the vagueness in these two regulations. As some may recall, I did not endorse EPA's regulations when they were proposed, in part, because EPA was not able to say why .08 for ozone was better than .09, but .07 was not better than .08. Whenever that subject came up, Administrator Browner would always appeal to report of the Clean Air Scientific Advisory Committee that was nearly unanimous for .08. But, as the Court said, CASAC didn't articulate a decision principle either.
I think that Congress must do a better job of saying when "enough is enough". And that applies even where we are using technology based standards and the principle is clear. Our ability to detect these substances and control them gets better and better. It is a blessing of modern technology. But at some point removing that last little increment of pollution has a cost way beyond reasonableness. We need to do a better job in our environmental laws telling EPA when to stop.
My third point is on cost-benefit analysis. I suspect that many will think that cost-benefit analysis is the obvious answer to the Court's challenge. EPA can't use it now, because a previous decision of the same Court bars it. But Congress could amend the law to make it the principle for decision on these two pollutants. The Court seemed to invite such an approach. And indeed, the Governmental Affairs Committee is this morning marking up a bill to require a cost-benefit analysis of every regulation. Just set the standard where the cost of pollution control is equal to the cost of the doctor's visits avoided and you have a clear principle.
But I would caution those who would jump on the cost-benefit bandwagon to do their homework. In some cases, cost-benefit is a useful tool in setting national standards. We authorized its use in the 1996 Safe Drinking Water Act Amendments. The costs and benefits of drinking water treatment are roughly the same in Minneapolis and Philadelphia. Using a cost-benefit test on a national standard applying to both cities makes sense. But care is needed in using this tool, because the drinking water standard that is affordable in Minneapolis and Philadelphia will not always be affordable for the smallest towns in America.
In the case of the Clean Air Act, the complications are much greater. It is much cheaper to achieve any particular level of ozone control in Minneapolis than it is in Philadelphia because of differences in meteorology and the regional transport of pollutants. Whose costs and benefits do we consider when we set the national ambient air quality standard for ozone? Are the people of Minneapolis to be denied the protection that they can afford because the same standard would be too expensive in Philadelphia? Do all of us want to live under the air pollution regulations that would be readily affordable in Los Angeles? I don't think so.
Perhaps it is not as elegant as a Court of Appeals would desire, but our current system of muddling through may be the best that we can do. We have national health-based standards that are tough goals to strive toward and an implementation system based on state plans that leave many cities in perpetual non-attainment because immediate compliance would be too expensive. Although the system is a source of constant complaints and adjustments, we must also recognize that it has produced marvelous results in public health and air quality over the past 30 years. Clear principles would make us more comfortable. But it is exceedingly difficult to capture the physical complexity of a vast nation in simple legal principles. Clear air should be our real concern. And we should be loathe to throw out a law that has produced so many wonderful results.