EPA Arsenic Standard May Be Unconstitutional

Published June 1, 2003

The Competitive Enterprise Institute (CEI) and the State of Nebraska presented arguments April 15 in the U.S. Court of Appeals for the District of Columbia challenging the constitutionality of the Environmental Protection Agency’s arsenic in drinking water standard.

CEI, on behalf of several small water systems, and Nebraska charge the standard regulates a purely local issue and therefore exceeds Congress’s authority under the Commerce Clause of the U.S. Constitution.

In early 2002, EPA changed the standard for arsenic in drinking water from 50 parts per billion to 10 ppb. While the public health benefits of that new standard are extremely speculative, CEI and Nebraska argue, the costs undoubtedly will be great for many state and local drinking water systems.

“The demands of the new standard are absurd,” said Sam Kazman, CEI’s general counsel. “The science has failed to find any adverse impacts of arsenic in U.S. drinking water at the 50 parts per billion level, a standard that has been in place more than 50 years.”

CEI and Nebraska contend the new standard may present more of a threat to public health than the one it replaced. “Many poor Americans will likely disconnect from their current water supply to avoid the rule’s costs,” explained Kazman. “As a result, the riskiness of their water supplies will increase, not decrease, under the rule.”

The new rule is suspect, CEI and Nebraska claim, from a legal perspective as well. Arsenic in drinking water poses no acute or communicable threat; it therefore does not affect interstate commerce, and its regulation properly belongs to states and localities.

“This is a purely local issue that EPA has no business regulating,” Kazman said.

The Natural Resources Defense Council, which has intervened in support of EPA’s position in the matter, disagrees. “The relationship between safe drinking water and interstate commerce is quite direct,” contends its brief. “With no safe water supply there can be almost no viable commercial activity.” The brief further cites travel, tourism, and even terrorism as factors that “have reinforced the dependence of interstate commerce upon water utilities.”

In a series of recent cases, to which CEI and Nebraska point as precedent, the U.S. Supreme Court has placed limits on what the federal government can regulate under the Commerce Clause. The Court has determined health and safety issues are traditionally matters of local concern, and thus Congress or federal regulatory agencies must show significant interstate effects before acting to regulate those matters. The NRDC brief challenges that position.

On June 12, the Environmental Law Institute will host in Washington, DC a luncheon debate among three of the attorneys in the case: Steven Rogers, representing the U.S. Department of Justice; Erik Olson of NRDC; and CEI’s Kazman. For more information, visit the CEI Web site at http://www.cei.org/gencon/028,03459.cfm.

The Court of Appeals is expected to render its decision this summer.

For more information …

The 42-page brief filed jointly by the Competitive Enterprise Institute and State of Nebraska is available in Adobe Acrobat’s PDF format on the CEI Web site at http://www.cei.org/pdf/3266.pdf.

The 41-page brief filed by the Natural Resources Defense Council is available from the Rural Water Washington news blog at http://www.ruralwater.org/nrdcar.pdf.