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Reading the Clean Air Act After Brown & Williamson

February 2001

Citation: 31 ELR 10151

Issue: 2

Author: Michael Herz

I. Introduction

Smoking is not considered an environmental issue. Congress has kept the U.S. Environmental Protection Agency (EPA) out of the tobacco regulation game by excluding tobacco from coverage under the statute otherwise most appropriate for that use, the Toxic Substances Control Act,2 and EPA's halting steps toward regulation of secondhand smoke have hit a judicial roadblock.3 Nonetheless, tobacco lurks on the fringes of environmental law and policy—not least because, as the single most significant threat to public health, it provides a benchmark against which environmental risks are often measured (usually by those arguing against regulating those risks). Now federal tobacco regulation has led to a judicial decision of potentially great significance for environmental lawyers: Food & Drug Administration v. Brown & Williamson Tobacco Corp.4 Though not an "environmental case" as such, Brown & Williamson holds important lessons for environmental law and litigation.

After a brief description of the opinions in the case, I will comment on two aspects of the decision of particular importance to environmental lawyers: the Court's handling of Chevron, U.S.A., Inc. v. Natural Resources Defense Council, Inc.5 and its reliance on post-enactment developments in interpreting a statute.

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