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NJ v. EPA and the EPA's Failed Mercury Policy:

Last week, in NJ v. EPA, the D.C. Circuit invalidated the Bush Administration's regulations establishing regulatory limits and a voluntary cap-and-trade program for mercury emissions from power plants, as I noted here. The opinion was a decisive loss for the Bush Administration, if not for the industry. The Bush Administration's regulatory strategy was significantly less aggressive than that initially set in motion under President Clinton (albeit in the waning days of his administration), and now the EPA will have to do it again.

Whatever one's opinion of the need for greater controls on mercury emissions or the use of cap-and-trade for this sort of pollutant, the D.C. Circuit's opinion makes abundantly clear that the Bush EPA's effort was illegal. Indeed, after reading the opinion it is not at all clear to me that the EPA even tried to comply with the Clean Air Act's requirements in writing their rules.

On December 20, 2000, as the Clinton Administration was coming to a close, the EPA listed coal-fired utilities as a source of mercury emissions under Section 112(c) of the Clean Air Act (CAA), a decision that would require regulating mercury emissions as hazardous air pollutants under the Act. The Bush Administration did not agree with this approach to controlling mercury emissions, preferring a less stringent and more flexible regulatory strategy than that contemplated by the Clinton Administration. So in 2004 the Bush EPA sought to chart a different course -- one that would rely upon a voluntary cap-and-trade regime rather than stringent technology-based controls -- and that's where the problems began.

Section 112(c)(9) of the CAA only allows the EPA to delist a pollution source once the agency makes specific findings. Specifically, 112(c)(9) requires the EPA to determine that "emissions from no source in the category . . . exceed a level which is adequate to protect public health with an adequate margin of safety and no adverse environmental effect will result from emissions from any source." This is a difficult standard to meet in any case, particularly so in the case of mercury. Yet rather than try and comply with this standard, and make the requisite findings, the EPA instead contended that it did not need to comply with the plain language of the law, prompting the D.C. Circuit to compare the agency's reasoning to that employed by Lewis Carroll's Queen of Hearts.

The NRDC's John Walke, with whom I agree on relatively little, is unsparing in his critique of the EPA's position. He also notes that the EPA's cavalier approach to statutory interpretation is hardly unique to this case. It is disturbingly common.

there is a prevalent strain within EPA -- fostered by but not limited to political appointees -- that approaches the responsibility of statutory interpretation with a linguistic relativism that verges on nihilism. Under this EPA school of thought and practice, words in statutes mean whatever EPA wants them to mean. While legal doctrines afford federal agencies discretion in areas where they are considered expert, for example in scientific matters, EPA abuses these doctrines in order to distort the act of reading the English language into a policy play thing. This is precisely why one sees courts resorting to rebukes that sound "like a civics lesson by an exasperated instructor" and "The Collected Works of Lewis Carroll" to characterize the absurdities of EPA's positions.
This has been a problem within the EPA for quite some time, in administrations of either political stripe. Yet this problem may be compounded by two factors somewhat unique to this administration: 1) the minimal attention paid to environmental policy questions, and 2) an expansive view of executive authority. Combined with the EPA's traditional resistance to statutory constraints, the result is an agency out of control and without adult supervision.

Related Posts (on one page):

  1. NJ v. EPA and the EPA's Failed Mercury Policy:
  2. Court Voids EPA Mercury Rules:
Rock On (www):
I am an ardent environmentalist. I fairly recently started working closely with EPA, (not at EPA, for the record), and it has been so frustrating that I am probably going to change fields in the near future. The agency is a mess.
2.12.2008 11:58pm
TokyoTom (mail):
Jon, nice try to paint this as a problem that afflicts both parties. Perhaps, but we are talking about the last seven years, after all.

Moreover, it seems to me that your short list of "compounding factors" that you concede are "somewhat unique" to this administration leaves out the most salient factor: a shameless willingness to cater to rent-seekers. As prominent free-market environmentalist John Baden has noted: "Republican commitments to limited government were eroded by the opportunity to transfer wealth to clients and constituencies. It's that simple -- and that sordid."

This is true for what happened not only in Congress but in the administration as well. Republicans were not merely kids in the candy store, they lined their pockets by giving the store away.

The fact that Republicans controlled Congress for most of this time further compounded the problem by weakening the already rather weak oversight role that Congress seems willing to play these days. We'll see if it's any different when the Dems are in charge over the four years starting next January. One can only hope, pray, and keep a spotlight on things.
2.13.2008 2:58am
Jonathan H. Adler (mail) (www):
TT --

I think what Baden described occurred at the Interior Department, where there was a definite pro-industry tilt and corruption that landed several folks in jail.

My point here goes beyond any pro-industry tilt, however. EPA could be pro-industry without flouting the express statutory text.

As for whether this problem afflicted the EPA prior to 2000 as well, I did a report many years back documenting the high number of instances in which the Clinton EPA was rebuked by in court. As with this administration there were repeated instances of the agency flouting clear text, and even instances of doing so in order to "give the store away" to preferred economic interests. (See, e.g., the renewable fuel standard the EPA tried to impose.)

Once this administration has come to an end, I plan to do a comparative study to look at which administration's EPA had a harder time complying with the law. I suspect the Bush folks will come out worse, but I also expect it will be closer than many expect it to be.

Finally, if the NRDC (no friend of the administration) is willing to note the problem goes beyond political appointees, who am I to argue. ;-)

JHA
2.13.2008 7:54am
Tracy Johnson (www):
Was the struck regulation the one that stops us from buying light bulbs in 2012? Does this mean we can buy light bulbs again?
2.13.2008 9:36am
TokyoTom (mail):
Jon, in the piece I linked to actually John Baden was actually talking about Congress, but clearly the rent-seeking and -brokering extends to the administration and agencies as well. It doesn`t surprise me to hear that Dems have played the same games - but that also reinforces my point that most of this is fuled by rent-seeking.

The temptations felt by Administrators, political appointees and other staff to mold the law to fit executive or bureaucratic imperatives is increased when Congresscritters of the same party control the Congress, since they will sometimes affirmatively turn a blind eye to shenanigans. And in other cases, the willingness and ability of Congress or individual politicians to play a meaningful oversight role is limited.
2.13.2008 11:48am
Westie:
Some (including me) might say that a closely related illness has struck the US Patent and Trademark Office recently, thus leading to a large collection of their new rules being enjoined from effect. Ongoing litigation in NDVA shines some pretty harsh light on the tendency of the PTO's political appointees plainly ignoring the requirements of statutory language, or flat falsely asserting their compliance with it. Good times.
2.13.2008 11:54am