The Implications of "American Trucking" for Risk Analysis. J. Applegate, Indiana University
In Whitman v. American Trucking Associations (2001), the Supreme Court rejected two fundamental challenges to the way that Congress and the Environmental Protection Agency regulate conventional air pollutants. First, despite forceful arguments from industry and prominent members of the risk analysis community, the Court held that Congress had precluded EPA from considering cost in setting national ambient air quality standards under section 109 of the Clean Air Act. In doing so, the majority relied on a kind of presumption that was not to be considered, a position that drew spirited disagreement from Justice Breyer. Breyer’s concurrence highlights several roles for risk analysis and the centrality of risk and cost in toxics regulation. Second, the Court held that section 109 provides constitutionally sufficient guidance to the agency in setting regulatory standards for such pollutants, turning aside a challenge based on the so-called Nondelegation Doctrine. In doing so, the Court permitted – indeed, one can argue, compelled – the agency to rely on and to continue to develop risk (and, outside of section 109, cost-benefit) analysis techniques to establish and justify its regulatory standards.
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