I had so much fun making fun of our government’s approach to word meanings that I decided to write a follow-up. And sure enough, it did not take long for the courts to get bogged down in another argument over what a pair of words mean. In this case, it is the words “appropriate” and “necessary.”
The Clean Air Act obligates the EPA to determine if regulating power plant emissions of “hazardous air pollutants,” a specific class of dangerous compounds, is “appropriate and necessary.” But the agency didn’t consider costs when it decided whether to submit power plants to hazardous air pollution regulation; it got around to conducting a cost-benefit analysis only after it decided to regulate, while it figured out how strong regulations should be. How could the agency have reasonably determined that regulation is “appropriate” without considering costs?
For most of its history, the EPA’s regulation of the environment has been a two-step process. First, they determine whether a substance has negative implications for our health, our environment, and whatever else falls within their regulatory authority. If it does, then they have a much more complex decision to make – How to regulate that substance.
Ideally, they could use the ideal of total replacement. If they could eliminate the substance completely, it would not be a risk to anyone or anything. But of course, that is rarely so easy. Whatever industry uses or exposes or releases the substance would need to find an alternative that is not hazardous. They would need to establish that there are no unintended consequences of the new substance. And they would need to convert their processes from the hazardous substance to the replacement.
Instead the EPA walks a fine line that combines performance standards (reduce the level of the substance to an acceptable risk), specification standards (reduce the level of the substance to a specific amount that they have predetermined is not hazardous), and cost/benefit analysis to identify how much the reduction (whether through specification of performance standards) needs to be. In today’s world, bankrupting an industry is not an acceptable side effect of reducing the level of a substance in our water or even our food so this last step is an acknowledged requirement in this second stage.
So here is the basis of the new argument. The EPA’s regulatory mandate was expanded to include the regulation of mercury and other substances released by power plants. The same language as usual was included, the EPA needs to take steps that are “appropriate and necessary” in the development of these regulations. So as usual, they need to establish the health implications of mercury and the other substances to see if any of them are hazardous. And if any of them is, they need to apply cost/benefit analysis to the determination of how to regulate it (performance standards) and by how much (specification standards).
The plaintiffs want the EPA to use cost/benefit analysis in the first stage as well. This has me a little confused – how do you apply cost/benefit analysis to determine if there are negative health consequences of a substance at any level? But the plaintiffs claim that the words “appropriate and necessary” require them to.
As I said earlier, I am not diving into what the regulations for mercury should be or where cost/benefit analysis should be applied. What ties this debate into the one last week about “authorization” and “prohibition” is how the court is going to determine what the words “appropriate” and “necessary” mean. It was Congress that added these words to the law. So it seems that one possible way to find out what Congress meant by these words is to give them a call. The Supreme Court is just down the street from Capitol Hill. Or, they could review the transcripts of the debates when the language was created. This could be better because there is no guarantee that the Congresspersons haven’t changed their mind since the original debate. But they are not doing this either. As with last week’s post, it is going to be a panel of judges (or in this case Supreme Court Justices) who decide, based on the oral arguments of a bunch of attorneys and any amicus briefs filed by whoever has an opinion (and knows how to submit an amicus brief).
I could just copy and paste the text from last week here. Is this as crazy as it seems? Who do you think should decide what the words mean? Where would user centered design come out on this one?
Image Credit: OpenClips