Congressman Ed Whitfield (R-KY), chair of the House subcommittee on energy and power, issued a press release on Friday that succinctly captured some House Republicans' disregard for our nation's environmental laws. What was truly remarkable about this statement, however, was the simultaneous disregard it showed for the Supreme Court and its rulings.
In response to a proposed EPA rulemaking to strengthen air quality standards protecting Americans against harmful particulate matter (or soot) pollution, Mr. Whitfield said the following:
Particulate matter standards should be based on a full scientific and economic review, and proper consideration of reasonable alternatives. Before ramming through new standards that could threaten jobs and our economy, we need to be sure of the science and the costs.
The problem with that reaction is not just that it misapprehends the economic impact of the proposal. The deeper problem is that the congressman's statement flies in the face of a unanimous Supreme Court ruling, authored by Justice Antonin Scalia no less, based on the plain language of the Clean Air Act.
In Whitman v. American Trucking Assns., Inc., all nine justices agreed that the Clean Air Act "unambiguously bars cost considerations from the [air quality standard]-setting process." The Court ruled that the EPA Administrator must base national air quality standards (for soot, smog and the like) on health and scientific factors alone when determining what amounts of air pollution are harmful for humans to breathe.
When setting national air quality standards based upon the scientific determination of what level of air quality is safe for humans, EPA may not consider the costs of future implementation measures needed to meet those standards The Clean Air Act, however, has always allowed — and usually requires — costs to be weighed when the time comes to adopt and implement the pollution control measures and programs to meet the health-based air quality standards.
The EPA proposal that Mr. Whitfield was reacting to concerns the Clean Air Act's air quality standard-setting process that the Supreme Court ruled may not consider economics or the costs of implementation.
So it is remarkable that Mr. Whitfield's critical two paragraph statement mentioned — or appealed to EPA to consider — cost and economic considerations no fewer than ten times.
I realize there is currently partisan warfare over the economy. I get it. So it's tempting to dismiss this statement as predictable partisan posturing over jobs and the economy.
Or perhaps those unfamiliar with Mr. Whitfield's role as chairman of the House subcommittee with jurisdiction over the Clean Air Act might be prepared to believe he is unfamiliar with this Clean Air Act prohibition or the Supreme Court's decision in American Trucking.
However, Friday’s statement is not the first time Mr. Whitfield has challenged the American Trucking decision and the forty year-old Clean Air Act requirement to set honest, scientifically-based air quality standards that are "requisite to protect the public health" with an "adequate margin of safety." Rep. Whitfield is a co-sponsor of the extreme “Gasoline Regulations Act,” [pdf] (better known as the “GASP ACT”), that would force EPA to define healthy air based not just on medical science but in part on the “feasibility and cost” to polluting industries.
During the markup for this bill in the House Energy and Commerce Committee, in what appeared to be an obviously orchestrated exchange, Rep. Whitfield (a lawyer himself) asked the following question of the Majority Counsel (1:27:02):
I would like to ask counsel a question here. It is true that as related to ozone [the GAS Act] would change the Clean Air Act. Now, this came about because of the American Trucking Association v. Whitman case that went all the way to the United States Supreme Court. And the question in there was whether or not you could consider cost when you are coming forth with new ambient air quality standards as it relates to ozone. And the court said what?
On cue, the Majority Counsel responded: "[t]he court interpreted the Act to be ambiguous with respect to whether costs—"
Rep. Whitfield cut off the rest of her sentence, jumping in with this statement:
Yeah. So it said it was ambiguous and that is why they said you have got to consider cost . . . . And that is all that [the Gas Act] does here, is that we don't say, hey, you make the decision or anything else. We just say, let us consider the cost because the only reason costs are not being considered there today is because the Supreme Court said the language was ambiguous. Thank you.
This statement entirely misrepresents the holding of American Trucking.
Rep. Henry Waxman (D-CA) quickly tried to correct Mr. Whitfield:
Look, this was a case that went to the Supreme Court. The Supreme Court held unanimously that the law requires that when standards are set, it be set based on protecting the public health. That was their finding. It was a unanimous finding. And they weren't ambiguous at all. Let me read what Justice Scalia wrote in that opinion. He said, for the court, the Clean Air Act “unambiguously bars cost considerations from the NAAQS”—National Air Quality Standards-setting—“process and thus ends the matter for us as well as EPA.” He is saying it is not ambiguous. Even if you wanted to do it differently, it is not ambiguous because the law does not allow it. Is that correct?
The Counsel was forced to concede Mr. Waxman’s point, saying that “[t]he ultimate finding is that EPA should not consider costs in setting the standards.”
However, Mr. Whitfield went on to say, “So now, Mr. Waxman is saying Justice Scalia said it was totally unambiguous, but you have indicated there was a place in there where it said it was ambiguous.”
In one last attempt, Mr. Waxman tired to dispel the confusion:
[In American Trucking] [s]omebody made an argument to the court that there are other sections of the Clean Air Act that are ambiguous and that would allow them to require that cost be considered in setting the standard. But Justice Scalia, probably not happily, said that is not true. Justice Scalia on behalf of a unanimous court says that the language of the Clean Air Act unambiguously bars cost considerations for the standards setting. Is that a correct statement?
The Counsel was again forced to concede the point: “[t]hat is a correct quote.”
In two different public settings, Rep. Whitfield has encouraged EPA (through his press release) and Congress (with the GASP Act [pdf]) to ignore the plain language of the Clean Air Act and to overturn a unanimous Supreme Court decision.
He would eliminates the forty year-old requirement that EPA base clean air standards on health science and medicine alone in determining whether the air is safe to breathe. Instead, Rep. Whitfield would have EPA define healthy air based equally on the “feasibility and cost” to polluting industries, which would compel EPA to accept air quality standards that do not protect public health.
This would rob Americans of their fundamental right to clean air, promised by the Clean Air Act since its adoption in 1970. Instead, EPA would be forced to set unprotective air quality standards for smog pollution that are at odds with health science, based on cost complaints by polluting industries.
This is like an insurance company prohibiting your doctor from telling you whether you have cancer, if the insurance company thinks the cost of treatment is too high. Instead, the doctor would be ordered to lie to you, tell you you're not sick, and send you home.
Through the GASP Act, Mr. Whitfield would overturn a unanimous Supreme Court decision and have EPA set unprotective, scientifically insufficient and cost-driven standards when adopting clean air standards that are supposed to protect our health. The Clean Air Act has never worked that way nor should it.
And that’s just one of the things that makes Friday’s press statement from Mr. Whitfield’s office so incredible. The GASP Act bill is not the law of the land, and the Clean Air Act and a unanimous Supreme Court decision unambiguously bar cost and economic considerations during the air quality standard-setting process. Yet here was an influential Congressman urging EPA to base its particulate matter standards on a “full scientific and economic review.” (emphasis added).
Even as members of the legislative branch, members of Congress should be equally committed to ensuring enforcement of laws of the United States and respecting Supreme Court decisions. And it is just as important for legislators to be open about the boundaries of current law, even while they are sponsoring legislation that attempts to fundamentally depart from Supreme Court precedent and weaken current law.