Seven strikes, you're out? EPA court defeats keep piling up
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It’s been a tough year in the courts for the EPA, according to an American Action Forum “scorecard” counting at least six job-killing-economy-slowing EPA regulatory actions that federal courts have struck down. We might add a seventh to AAF’s list – the U.S. Supreme Court’s decision in Sackett v. EPA, where the Court chastised the EPA for “strong-arming” regulated parties.
Last March, we blogged about three federal court decisions that slapped down the EPA for ignoring its legal obligations. Those decisions harshly criticized the EPA for “magical thinking” (Mingo Logan v. EPA); “unthinkable” conduct running roughshod over due process and property rights (Sackett v. EPA); and “overstepping” the bounds of the agency’s authority (Luminant Generation Co. v. EPA). Triple ouch.
Alas, when it comes to EPA regs, the rule isn’t three strikes and you’re out. August is starting to look a lot like March, with two separate federal courts rebuking the EPA for ignoring the plain text of the Clean Air Act and attempting to usurp the authority of the states’ to achieve air quality emissions standards.
Yesterday, the D.C. Circuit struck down the EPA’s “Cross-State Air Pollution Rule” that would have imposed $2.4 billion (at least!) in drastic new requirements on utilities in “upwind states” to curb emissions that could affect “downwind states” (EME Homer v. EPA). That sounds like a laudable objective - except, as the D.C. Circuit explained, the Clean Air Act already has a provision to address this very problem (colloquially called the “Good Neighbor” provision) - and the Act relegates the job to the states, not the EPA. The D.C. Circuit’s decision is “good news for consumers and for the reliability of our electricity grid,” according to Karen Harbert, president of the Chamber’s Energy Institute.
If the D.C. Circuit’s criticism of the EPA for stepping on state authority sounds familiar, it might be because last week, the Fifth Circuit overturned an EPA effort to take over Texas’s long-standing air quality permitting program (State of Texas, et al. v. EPA). The Fifth Circuit ruled that the EPA could not unilaterally dismantle the Texas program after letting it operate for 16 years. What’s more, the court reminded the EPA that the states play a “central role” in the Clean Air Act, and have “broad responsibility” and discretion regarding the means to achieve air quality standards set by the federal government.
Of course, there are still many misguided and unlawful EPA regulations working their way through the legal system, including the EPA’s $10 billion “blackout rule” (White Stallion Energy, et. al. v. EPA). And regulators have notched some victories in environmental cases, particularly in the Ninth Circuit. Indeed, last May, a blistering dissent by Judge Milan Smith criticized the Ninth Circuit for “stray[ing] with lamentable frequency from its constitutionally limited role” by deciding environmental cases based on policy preferences, rather than calling balls and strikes based on what the environmental laws actually require (Karuk Tribe v. USFS).
A Wall Street Journal editorial summarizes this string of EPA defeats well:
“The message is that regulators must follow the laws of the United States. Why do federal judges constantly have to remind EPA Administrator Lisa Jackson of this basic principle?”
Here’s to hoping that the EPA internalizes the courts’ message – soon – before more jobs are lost, and more damage is done to the economy.
To learn more about these cases and others, visit www.ChamberLitigation.com, the website of the Chamber’s public policy law firm.