Date: Apr 18, 2001
In the first-ever use of a bill passed five years ago to provide for Congressional
oversight of agency rules, Congress has invoked the Congressional Review Act (CRA) to
torpedo the expensive ergonomics rule finalized during the end of the Clinton
On the judicial side, the US Supreme Court handed the Environmental Protection Agency a
significant (but not total) victory in February on clean air. In a rare unanimous
decision, the Court backed EPA's determination that it was barred from considering costs
in setting national ambient air quality standards (NAAQS) under Section 109(b) of the
Clean Air Act (CAA) in Whitman v. American Trucking Assn.
Concerted industry effort generated support from moderate Democrats for a resolution
overturning the ergonomics rule. The CRA is a provision of the Small Business Regulatory
Enforcement Fairness Act (SBREFA), passed by Congress and signed by President Clinton in
1996. It gives Congress 60 legislative days to review a rule. During that time, it can
pass a joint resolution of disapproval, which effectively stops the rule from taking
effect. The President can veto the action, but Congress retains the power to override the
Presidential veto. President Bush, however, has indicated that he will approve the
A broad and determined coalition of industry groups-including members of the National
Coalition on Ergonomics, grocery store interests, bakers, manufacturing interests, members
of the Food Marketing Inst., hotel and service industries, and others-mobilized against
the ergonomics rule, using the extraordinary costs as a rallying cry. Many businesses
similarly consider the cost of EPA's NAAQS requirements to be equally unacceptable but
were forced to look to the courts for relief.
The NAAQS legal battle began after EPA issued revised ozone standards and a new
standard covering particulate matter (PM) 2.5 microns or less in diameter. Unable to
convince Congress to invoke the CRA, industry groups filed a lawsuit. Justice Scalia, for
the majority, said the clear language of the Clean Air Act barred cost considerations in
setting NAAQS. The Court upheld the lower court decision that relied on a 20-year old case
(Lead Industries Assn. Inc. v. EPA) that concluded consideration of costs was barred in
establishing health-based NAAQS. The Court rejected industry's argument (and the lower
court's decision) that an unconstitutional delegation of authority was involved,
concluding that EPA did have the authority to issue the rules.
EPA's victory was not total; the Court concluded that EPA's determination that the
provisions of Subpart I of the CAA, which includes general provisions applicable to
nonattainment areas for all pollutants, rather than Subpart II, which provides specific
requirements for time tables for compliance, govern the new ozone standard. Ignoring
deadlines and compliance requirements of Subpart II and relying only on Subpart I was
improper, said the Court. The case has been remanded to the D.C. Circuit.
In refusing to defer to the EPA's decision on the implementation schedule completely,
the Court has demonstrated clearly the need for Agency justification within the statute.
Thus, future challenges are possible, but arguments will have to focus on EPA's science
and technological issues, and the reasonableness of the implementation schedule using the
traditional "arbitrary and capricious" test standard in administrative law, not
The bottom line: For proposed regulations, the first line of defense for industry is to
provide all possible relevant scientific, technical, and economic input. When, despite
those efforts, a final rule is issued that is overbroad, too costly, technically
infeasible, or inconsistent with sound science or statutory mandates, all available
options for challenge can and should be considered.
Reproduced with the permission of Paper, Film & Foil CONVERTER magazine
(312.726.2802). Copyright © 2001 by Intertec Publishing. All rights reserved.
For further information about this article, please contact Sheila A. Millar at 202-434-4143 or by e-mail at email@example.com.