US EPA’s low success rate against appeals leads to call for reform

The USEPA's tendency to lose most of the cases brought against its regulations in the federal appeals court indicates the need for reform of the way the EPA is managed and how it develops regulations, a policy think tank claims.

In the last seven years, the EPA has won only a third of the appeals filed against its regulatory actions in the US Government’s main court for challenges to environmental law. This is, says the the pro-free market Reason Public Policy Institute (RPPI) in a report, a significantly lower success rate than that of other federal agencies.

The report says that in many recent cases the EPA was either found to act with little regard for the limits of its authority, or issued excessive or insufficient regulations. For instance, RPPI told edie, parts of the proposed 1997 national ambient air quality standards revision were struck off when the court decided that the EPA had not established a coherent rationale for its decisions.

Such cases, the RPPI argues, raise serious questions about the rigorousness of the agency’s policy evaluation and development and reveal the need for fundamental reform in the way EPA is managed and how it develops regulations.

The RPPI’s report, Environmental Performance at the Bench: The EPA’s Record in Federal Courts, analysed 69 challenges brought against EPA regulations in the US Court of Appeals for the District of Columbia Circuit, which has primary or exclusive jurisdiction over the regulatory activities of most federal agencies.

Of the 69 cases analysed, EPA won 23. In 37 cases, the court struck down some or all of the challenged rule. In the remaining 19 cases, the court dismissed the suit because it either wasn’t seen as timely, or because the people bringing the suit were not considered to have proper ‘standing’ with the court.

Though the circuit court is difficult for all federal agencies, the report claims other agencies still win a majority of the time. Although RPPI told edie that it doesn’t have specific win/loss figures for other agencies, its report cites figures for the Occupational Safety and Health Administration (OSHA), which has lost few cases in the same timespan under consideration. RPPI claim that for all agencies, rulemaking is upheld between 70 and 80% of the time, far more than the EPA’s 33% success rate. This poor performance is surprising, the report says, given the tendency of courts to defer to decisions taken by federal agencies.

“Courts historically defer to the judgement of federal agencies and only intervene for very specific reasons,” says the report’s author Jonathan Adler. “With the EPA in recent years we see a different picture. More than half of the time, the courts have over-ridden agency actions.”

The RPPI report points out that the courts strike down regulations for three primary reasons – the regulation is unlawful, the regulation is arbitrary and capricious, or the regulation was not issued in accordance with procedural compliance. “Meeting these standards is fairly easy for federal agencies,” says Adler. “Yet, in many recent cases the EPA was found to act with little regard for the limits or obligations of its authority. In other cases the agency has been found to issue either excessive or insufficient regulations.

“Several EPA losses are quite significant in terms of environmental policy and raise serious questions about the rigorousness of the agency’s policy evaluation and development, as well as the agency’s recent priorities and policies,” states Adler.

Adler argues that this record of legal defeats does not suggest an anti-environmental judiciary, as judges appointed by Presidents Carter, Reagan, Bush and Clinton have ruled against the EPA. Adler believes that this record, instead, reveals the need for fundamental reform in the way EPA is managed and how it develops regulations.

The study proposes that Congress expand its legislative oversight of the EPA and improve the drafting of legislative language to ensure clarity of intent. The executive branch should also include more rigorous risk assessment in its procedures and define its regulatory reach with more care, the report argues. Until such time, Adler urges the courts to maintain their scrutiny of the Agency.

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