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The Bush Administration's Losing Environmental Record:

The Bush Administration appears to lost an awful lot of environmental cases in federal court. That's the impression of many environmental law experts, as reported in this Sacramento Bee story. There has yet to be any systematic study of the Bush Administration's record defending its environmental policy decisions across the board, but it is unlikely the record is all that good. According to the Bee:

Legal victories for Bush's environmental team, however, have been few, particularly in disputes over fish and wildlife.

Kierán Suckling, executive director of the Center for Biological Diversity in Tucson, Ariz., said he was astonished by a tally his legal staff compiled at The Bee's request on outcomes of Endangered Species Act cases.

Of 78 federal court rulings and settlements in species cases resolved since January 2001, the Bush administration won just one: Judges agreed that western gray squirrels in the Pacific Northwest did not warrant protection, according to the center, which filed most of the challenges.

"I asked lawyers around the country, 'Are there any other cases? Have I missed something?' and everyone seems to agree that this is correct," Suckling said.

House Oversight and Government Reform Committee Chair Henry Waxman is also requesting information from the EPA on how it has fared against legal challenges to its rules in the D.C. Circuit.

The Bee article quotes me saying the following: "We can say they have a poor record in court. I'm not sure we can say they had the worst record." My point was that, in some areas, it is not clear that the Bush Administration's legal record is all that worse than those who came before. I would like to qualify this statement (as I did to the reporter). As I explained to the Bee reporter, it was certainly my impression that land and resource agencies (Interior, USFS, etc.) had a worse record defending their decisions in federal court than prior administrations, and it is my impression that these agencies have been less diligent in seeking to comply with statutory mandates than under prior administrations. The ESA numbers cited in the story certainly confirm that impression.

When it comes the Environmental Protection Agency, however, it is not clear to me that the Bush Administration is losing more often than its predecessors. The Bush EPA has lost some big cases, and sought to defend some blatantly illegal policy decisions (see, e.g., here), but the Clinton Administration also had its share of high profile losses, including several cases in which federal courts rejected Clinton policies with strong or dismissive language. In one instance, the Clinton EPA had the same policy decision overturned three times in the D.C. Circuit. So, until I see data showing that the Bush EPA has a worse record than prior administrations, I am inclined to believe that the problem is with the EPA, rather than any specific administration, but the data may well prove me wrong.

UPDATE: Assuming, as I do, that the Bush Administration's preference for less stringent and more industry friendly environmental regulation is not, in itself, sufficient to explain its difficulties in court, then what is the problem? Here is what I hypothesized in a prior post:

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.

Alex84:
Maybe its because the administration is getting so many lawyers from Regent Law school - just kidding!!! kind of.
5.19.2008 10:40am
ithaqua (mail):
I blame eco-freak activist judges, myself. :)
5.19.2008 10:59am
Frank3 (mail):
I would recommend listening to this show, and reading this article. They suggest an administration forcing radical and sometimes incomprehensible constructions onto existing law. For example, according to the NRDC spokesman in the radio story, the polar bear regs require proof that a particular power plant contributed to the particular increment of global warming that threatened the polar bears before the administration is willing to do anything constructive to protect them. This isn't a serious interpretation of the law--it's laughable.
5.19.2008 11:22am
Justin (mail):
It's at least an interesting difference, given both the (actual and practical) different standards of review and the conservative judiciary, that Clinton's losses tended to be based on its attempt to regulate something beyond the Government's authority, and Bush's losses tend to be based on its failure to regulate something required by Congress.
5.19.2008 12:33pm
A. Zarkov (mail):
Frank:

How do we that know power plants cause any global warming at all? Even collectively. You are assuming that the science of AGW is as they say, "settled." Even using the term "science" is somewhat over reaching because the aGW advocates rely on computer models for their predictions and conclusions of cause and effect. Of course the Bush administration now itself buys into AGW.
5.19.2008 12:38pm
Kazinski:
I myself do blame the judges. There have been some stunningly bad high profile decisions, that seem to be designed to implement the courts policy preferences rather than the law as Congress intended. As Scalia dissented in Mass vs EPA:

[The Court] has no business substituting its own desired outcome for the reasoned judgment of the responsible agency.


In that case even if everything the petitioners allege is 100% true, then regulating automobile CO2 will have zero effect on Global warming. There is no dispute about that whatsoever, whether you believe in Global warming or not. So the court decides that the EPA mission is not to promulgate regulations that will address any problem, the EPA's mission is to pomulgate meaningless gestures that will cost the economy billions.
5.19.2008 1:07pm
Kazinski:
Frank3,
If the law doesn't require that the impact of each plant has a measurable effect on polar bear habitat, shouldn't the law at least require that it be shown that polar bear populations are at least declining?


They reported that of the 19 subpopulations of polar bears, five are declining, five are stable, two are increasing, and seven have insufficient data on which to base a decision.


Or even if the theoretic decline is related to warming?

The standard seems to be: no evidence is needed to prove the problem, just some informed speculation. And once a problem has been theorized, then no evidence is needed that the mandated solution will have any impact on theoretical problem.

That is science?
5.19.2008 1:26pm
r.friedman (mail):
Kazinski --
"Reasoned judgment of the responsible agency"? This administration has suppressed reasoned judgments, punished and driven out those who reach them, put people whose only credentials are of the right-wing conservative type in public affairs and congressional relations positions which control what comes out of the agency, and modified agency opinions for political reasons in the OMB and White House. CDC, FAA, EPA, Forest Service, NOAA, NASA -- there is not one federal scientific agency where this has not taken place. This is but one stall of the Aegean stables left for the next administration to clean out.
5.19.2008 3:01pm
Ohismith (mail):
They don't call it the Lawless Administration for nothing. Please rise above the temptation to compare to the Clinton administration. It's quite clear that the EPA is not upholding its lawful duty--the statistics discussed in this post are merely more evidence of what was already well known.
5.19.2008 3:03pm
Adam J:
Kazinski- Oh come on, the crux of the EPA's argument was that it didn't have the authority to regulate air pollution & Bush already has his own plan for dealing with air pollution. Both of these arguments are pretty weak, can anyone argue with a straight face that C02 isn't a "physical, chemical, ... substance or matter which is emitted into or otherwise enters the ambient air". Nor can the President can't come up with his own plan if it contradicts the Clean Air Act, a statute enacted by Congress.

And Scalia's argument was also quite bizarre, that the EPA could defer judgment for policy reasons... which basically would allow him to ignore any and the statutory obligations that Congress required the EPA (or any other agency for that matter) to perform. Basically, Scalia's opinion was a search for a loophole to allow the Clean Air Act to be completely circumvented by the Bush administration. If you ask me, Scalia was pretty clearly playing litigator (a frighteningly clever litigator to be fair) rather than Justice. And I'm not even going to get into Scalia's parsing of the definition of an air pollutant under the statute, let's just say I don't think much of it.

Of course all this happened because the EPA refused to a judgment about regulating based the dangers of climate change caused by CO2... no doubt to avoid the administration being held political accountable for saying there isn't a danger from CO2 or the danger is uncertain.

P.S. That's not to say EPA v. Mass. was decided rightly... the argument for standing is a bit questionable, but Scalia's opinion was an attack on the merits of the case...
5.19.2008 3:51pm
Kazinski:
Adam J.
So this is the standard: "physical, chemical, ... substance or matter which is emitted into or otherwise enters the ambient air"

Ok then based on this standard then the EPA needs to regulate any activity that causes trees to be planted. Trees emit thousands of tons of oxygen in the atmosphere every day, and you have people planting trees all the time with no regulation whatsoever.

So you say that oxygen is not a pollutant it is a naturally occuring gas that is necessary for life? Well you've just described CO2 also.
5.19.2008 5:13pm
Adam J:
Kazinski- I guess I shouldn't have used the ellipsis when summarizing the statute, since you would know you're hypothetical doesn't fall in the statute if you took the time to read it-

42 U.S.C.A. § 7521(a)(1) The Administrator shall by regulation prescribe (and from time to time revise) in accordance with the provisions of this section, standards applicable to the emission of any air pollutant from any class or classes of new motor vehicles or new motor vehicle engines, which in his judgment cause, or contribute to, air pollution which may reasonably be anticipated to endanger public health or welfare. Such standards shall be applicable to such vehicles and engines for their useful life (as determined under subsection (d) of this section, relating to useful life of vehicles for purposes of certification), whether such vehicles and engines are designed as complete systems or incorporate devices to prevent or control such pollution.

Under the statute, the Administrator of the EPA would have to regulate oxygen that was emitted from a vehicle, or judge that the oxygen need not be regulated (the more likely result). On the other hand, he has no authority to regulate tree planting...
5.19.2008 5:37pm
Adam J:
Kazinski- Oops... I cited § 7602(g) before, the definition of air pollutant, which has to be read in conjunction with § 7521(a)(1). All the same, if you're going to debate the merits of the clean air act's reach, you might want to read the relevant parts of the statute first, then you would know your zany hypothetical wouldn't work.
5.19.2008 5:45pm
courtwatcher:
Kazinski,
Re your argument about oxygen:
First, do you really think your policy preferences are more persuasive interpretation of a statute than what the words say? You take what you seem to think is the plain meaning of the statute's language and then you say it leads to a bad result and imply strongly that it therefore shouldn't be interpreted that way. Is this how you think courts should interpret statutes?
Second, I suspect you are unfamiliar with what this statute actually says anyway, since you miss a crucial piece of the law that shows why the EPA can't and won't regulate oxygen or any other substance whose emission can't be shown to be harmful. In order to regulate a pollutant, EPA needs to make a judgment that the pollutant "cause[s], or contribute[s] to, air pollution which may reasonably be anticipated to endanger public health or welfare." I have never heard anyone argue that oxygen emitted from any mobile or industrial source fits into this category.
5.19.2008 6:50pm
Adam J:
courtwatcher- do you really think your policy preferences are more persuasive interpretation of a statute than what the words say? You're forgetting, plain meaning should only be applied when it supports your own policy preferences.
5.19.2008 7:36pm