September 2000 (vol. 16, #6)
1601 N Tucson Blvd #9, Tucson AZ 85716
c 2000 Physicians for Civil Defense


At the time of the Magna Carta, the King owned the forests, and the people complained of tyranny. The King's power was rather limited, by modern standards. He probably never even thought of the possibility of de facto ownership of all the air and water.

In the founding of the American Republic, the Constitution was designed to curb the inherent tendency for government to expand. The federal government was to exercise only a narrowly restricted list of powers, and authority was divided among three branches, each to serve as a check on the other two.

The power to make laws was vested solely in Congress, which is periodically subjected to the oversight of the people through the ballot box. (Originally, before the 17th Amendment, the Senate was subject to the oversight of the several States.)

The lawful power of the U.S. government is supposed to depend upon the ``consent of the governed.'' This concept is, however, a dead letter if Congress can delegate unlimited authority to the functional equivalent of a King or oligarchy.

Every living thing, and every human industry, produces emissions into the air and water. An agency with the power to control (``regulate'') emissions is in a position to deprive Americans of life, liberty, and property by administrative fiat. Does that constitute due process of law under the U.S. Constitution? The question of just how much power the Congress can delegate to such an agency is now before the U.S. Supreme Court in the case of Carol M. Browner, Administrator of the Environmental Protection Agency, et al., vs. American Trucking Association, et al. or U.S. v. ATA.

When the EPA proposed extremely stringent restrictions on ground-level ozone and small particles of 2.5 microns or less (PM2.5), which are 28 times smaller than the width of a human hair, the trucking industry sued. The Circuit Court of Appeals struck down the rules, holding the EPA's interpretation of the Clean Air Act-nearly unbounded discretion to set any standard it deemed protective of public health-to be an unconstitutional delegation of legislative authority. The EPA appealed. Amicus briefs on behalf of the ATA have been filed by a broad spectrum of organizations, including the Association of American Physicians and Surgeons (AAPS).

The cost of the regulations is between $47 billion per year (EPA estimate) to $100 billion per year (critics' estimate).

The benefits are, to say the least, controversial. EPA scientists have risked their careers to protest the poor science and heavy-handed tactics involved in setting these standards (see DDP Newsletter, July 1998,).

The EPA has been trying since 1992 or earlier to bring about a ``consensus'' on the hazard of PM2.5; this was one of the ``suggested'' items to be ranked by the Arizona Comparative Environmental Risk Project. (For a discussion of a ``consensus'' method, see ``Public-Private Partnership: What Does It Mean?'' AAPS News, May 1998). The AAAS has announced: ``Evidence Mounts that Tiny Particles Can Kill'' (Science 2000;289:22-23), citing a study released by the Health Effects Institute (

The Health Effects Institute, chaired by Watergate Special Prosecutor Archibald Cox, touts its dedication to ``the public-private partnership that is central to the HEI approach.''

The study showed a statistically significant correlation between PM10 (particles 10 microns or less) and the death rate in some areas (Southern California, the Northwest, the Industrial Midwest, and the Northeast), but not in others (the Southwest, the Upper Midwest, and the Southeast).

There are many difficulties with data of this sort, including exposure measurement errors; misclassification of health outcomes; selection bias; publication bias; internal consistency and strength of effects; plausibility of observed effects; and covariates and confounders (for example, smoking, other meteorologic conditions such as temperature and barometric pressure, other pollutants, and infectious illnesses). Additionally, the clinical significance of the effect is not clear; perhaps it hastened death by only a few days or weeks.

There are direct health trade-offs with regulations affecting particulate emissions. The DC Circuit Court of Appeals ruled that the EPA broke the law when it did not assess the effect of reduced ground-level ozone on human exposure to ultraviolet B. There are also very broad indirect health trade-offs in increasing the price of everything dependent upon fuel or electricity, such as air-conditioning, drugs, and heating oil (CEI Update 11/99).

It is quite likely that the EPA's main concern is not health at all, but rather the covert implementation of the Kyoto Treaty. The Competitive Enterprise Institute (CEI) and the Cooler Heads Coalition filed a lawsuit in March, seeking injunctive relief to prohibit the EPA from withholding documents in violation of the Freedom of Information Act. The FOIA request seeks information relating to EPA's ``climate change'' policies. The complaint alleges that the EPA failed to act for seven months on the fee waiver request, although these are routinely granted for nonprofit organizations, and that the only such request denied during 1999 was that of the Cooler Heads. The EPA's reluctance to release information suggests awareness that its actions may violate the Knollenberg restrictions against implementation of Kyoto before Senate ratification, according to Christopher Horner, Counsel to the Coalition.

The EPA has been telling congressional oversight committees that it has the authority to regulate CO2 as an air ``pollutant'' (Cooler Heads Newsletter, March 2000). If it loses that argument, PM2.5 could serve as a surrogate.

According to EPA, its Administrator is actually not permitted to consider economic costs, or technological factors, or anything other than ``public health'' or ``public welfare'' in its rulemaking. Indeed, in 1967 Congress authorized the Secretary of Health, Education, and Welfare (HEW) ``to proceed immediately to court for abatement of any pollution that creates substantial and imminent public health endanger- ment...regardless of technologic or economic feasibility''(1967 US Code Cong. & Admin. News 1954-55).

Who is to define what ``is'' is-or ``public health'' or ``endangerment,'' or ``imminent''? Is ``such plenitude of power...susceptible of transfer''? Has Congress, in effect, crowned Queen Carol, who has absolute power to define her own scope of authority? Or will the U.S. Supreme Court hold that the EPA has finally gone too far?


Regulation Without Representation

Early Americans rebelling against King George III asserted that ``taxation without representation is tyranny.''

Regulation is, in effect, an unlegislated tax imposed by executive agencies (for which Congress generally dodges its responsibility). How heavy is this tax burden?

Thomas Hopkins of the Rochester Institute of Technology projected overall regulatory compliance costs to be about $758 billion for 1999: 44% of federal spending of $1.7 trillion, 8% of the U.S. GDP, larger than all U.S. corporate pretax profits of $718 billion, and higher than Canada's 1997 GNP of $595 billion. The household regulatory burden is about $7,400, or 18% of the average after-tax income of a family of four (CEI Update, April 2000).


Clean Air Act §109 Unconstitutional, Argue Amici

On behalf of Lincoln Institute for Research and Education, American Sovereignty Action Project, Gun Owners Foundation, Public Advocate of the U.S., American Policy Center, 60 Plus, True Blue Freedom, and U.S. Border Control, Herbert Titus, et al., argue:

``Section 109 of the Clean Air Act ... is neither an `intelligible' exercise of an enumerated power, nor does it contain a meaningful `principle' to govern EPA discretion.''

Even when it amended the 1955 law by enacting the CAA of 1963, Congress remained steadfast in finding ``that the prevention and control of air pollution at its source is the primary responsibility of State and local governments'' because it is ``well established that the protection of the health and welfare of the citizens of a State is a proper subject for the exercise of State police power.''

The shift in power to the federal level came about because of a perceived ``ground swell'' of public opinion expressed in events such as Earth Day demonstrations.

In §109(b)(1) of the CAA, Congress states no general rule guiding the EPA but leaves standards solely to the ``judgment of the Administrator,'' who is ``free to pick any point between zero [risk to the public health or welfare] and a hair below the concentrations yielding London's killer fog'' (ATA v. U.S. 175 F.3d 1034, 1037 (D.C. Cir. 1999)).

The EPA followed guidelines published by the American Thoracic Society; however, Congress may not delegate such power to ``private persons whose interests may be and often are adverse to the interests of others'' who are affected by the regulation (Carter v. Carter Coal Co. 298 U.S. 238,311(1936).

The terms used in the CAA, ``requisite to protect public health'' and ``adequate margin of safety'' are unknown in common law, nor are they ``referents to medical, scientific or other terminology with commonly understood meanings.'' The statute thus provides absolutely no guidance to the EPA as to how ``safe,'' how ``clean,'' or how ``healthy'' the air must be.

``Even the chairman of the EPA's Scientific Advisory Committee has `unambiguously confess[ed]...the impossible nature of the task imposed on the EPA by the Act.''

The brief concludes: ``If this Court should decline to adjudicate the legal norms that command separation of the legislative, executive and judicial powers, and continue to permit Congress to delegate its lawmaking powers to administrative agencies, then it will not be putting its judicial imprimatur upon a `new instrument of government,' as James Landis claimed in 1983, but on an `old instrument of tyranny.' For it was during the Middle Ages that the Court of Star Chamber reigned supreme in England, exercising `broad and undefined executive, legislative and judicial powers' over such matters as `trades and businesses....' Only after the Star Chamber was abolished by Parliament in 1648 was `due process of law as established by Magna Carta' restored in England [Sources of Our Liberties 125, 130 (R. Perry, ed. 1978)]. Only by ruling that Section 109 of the CAA effects an unconstitutional delegation of legislative powers will this Court...take a similar step towards restoration of the rule of law in America.''

On behalf of Association of American Physicians and Surgeons and Center for Individual Freedom, Erik S. Jaffe writes, in a brief posted here.

The EPA regulations involve a ``fundamental value balance'' that must be ``part of the legislation itself (rather than hidden in the administrative process).... It will no longer be sufficient to articulate and take credit for only the popular half of legislative policy-such falsely singular purposes as to protect health, to feed the hungry, and to serve public interest.''

Simply requiring a rationale ``with some modicum of internal consistency and some evidence of actual thought'' isn't enough. ``Any choice among conflicting and irreconcilable values is possible as long as it is explained in sufficient detail. EPA's seemingly open-ended charge to protect the public health from unknown threats based on non-causal relationships thus defies review and defies guidance.''

National ambient air quality standards (NAAQS) of ``zero-risk, zero-concentration'' are ``by effectively demanding the impossible, ... facially absurd.... Aside from ignoring or masking difficult cost and feasibility constraints that necessarily form part of any rational governmental process, EPA's blinders also ignore or mask competing health considerations...and could actually lead to net loss of life.''


The Environment Without the EPA?

In an Earth Day essay, an 11-year-old wrote: ``If there was no Earth Day, the Earth would rot and die and there wouldn't be enough trees or oxygen.'' And David Whitman, reporter for U.S. News, wrote: ``At the time of the first Earth Day, America was a place where oil-drenched rivers caught fire....''

The fact is that prior to the establishment of the EPA in 1970, there was a wide variety of efforts, both legal and legislative, to stem pollution. And it was the destruction of private property rights and the metamorphosis of private property into common property that caused the nearly intolerable levels of industrial pollution in some municipalities by 1970. The 1969 fire in Cleveland's Cuyahoga River resulted from the law that waterways were ``public'' property.

The EPA scrapped much of the sensible law that was in effect and substituted a highly inefficient central command and control (William L. Anderson, ``Earth Day Group Think,'' at

For information about the environment and private property rights, other excellent resources include the Foundation for Economic Education (, the Acton Institute for the Study of Religion and Liberty (, or other groups linked to the Freedom Network ( ).