The 1997 standards were challenged by industry and three states (Ohio, Michigan and West Virginia) and in 1999 the United States Court of Appeals for the District of Columbia Circuit ruled that the air quality standard-setting process under the Clean Air Act as interpreted by EPA represents an unconstitutional delegation of Congress's legislative authority. The American Lung Association, represented by Earthjustice Legal Defense Fund, intervened to oppose the industry and state challenges. Along with several states – including California, New York, Pennsylvania, Massachusetts and New Jersey – the Lung Association has filed briefs supporting EPA's appeal to the Supreme Court.
"The stakes in this case couldn't be higher," said John R. Garrison, CEO of American Lung Association. "No other environmental contaminant has public health impacts anywhere near those of particles and ozone. That's why the American Lung Association, joined by thousands of medical and public health professionals, has fought for years to strengthen the standards. We oppose industry's efforts to turn back the clock on the important public health protections guaranteed by the Clean Air Act."
In today's argument, U.S. Solicitor General Seth Waxman, representing the EPA, explained that the Clean Air Act does not represent an unconstitutional delegation, because it gives ample guidance to EPA concerning air quality standards.
"Congress didn't violate the Constitution when it directed EPA to set air quality standards that 'protect the public health with an adequate margin of safety,' and EPA didn't violate it by setting standards that better protect Americans from death, hospitalization, and illness," said Howard Fox of Earthjustice Legal Defense Fund and counsel to the American Lung Association.
The Justice Department's Waxman also opposed industry's counter-appeal, which argues that air quality standards must account for the costs of controlling pollution. EPA has emphasized that Congress has clearly required standards to be based on protecting health only, and that costs are considered in the implementation process – by Congress in deciding the deadlines for meeting standards and by the states in selecting controls to meet standards. "Industry has repeatedly tried to persuade Congress to amend the Act to allow cost-benefit analysis, but Congress has refused," said Fox. "Industry is now trying to obtain from the unelected judiciary what it has been unable to obtain from the elected members of Congress."