EPA’s Legal Losing Streak
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By Josiah Neeley
Alexis de Tocqueville once noted that “scarcely any political question arises in the United States that is not resolved, sooner or later, into a judicial question.”
Nowhere is this truer than in the realm of environmental policy, where the courts are often the only refuge for those caught in the path of the Environmental Protection Agency’s regulatory steamroller.
After more than three years of what The Wall Street Journal called “a regulatory spree unprecedented in U.S. history,” EPA’s regulatory actions are finally being tested in court. And in amounting number of cases, they have been found wanting.
In March, the Supreme Court handed EPA a unanimous rebuke in Sackett v. EPA. The Sacketts are an Idaho couple who ran afoul of the EPA when they tried to build a house on their 2/3 acre lot. EPA claimed that the land was a protected wetland, and threatened the Sacketts with up to $75,000 per day in fines if they didn’t comply with EPA’s commands. When the Sacketts sued, EPA sought to avoid judicial review of their actions, a position rejected by the Court.
The focus of EPA’s losing streak has been in Texas.
A week after the Sackett decision, a federal appeals court threw out EPA’s rejection of Texas’ Qualified Facilities Rule. Adopted in 1995, the rule allows plants to make physical and operational changes to their sites without having to go through the full re-permitting process unless the changes either increase emissions or result in the release of new contaminants.
After taking no action for more than a decade, in 2010 EPA rejected Texas’ rule on the novel grounds that it was inconsistent with Texas state law. The court saw things differently, vacating EPA’s disapproval and instructing the agency to confine itself to deciding whether a proposed rule is consistent with federal law (as the Clean Air Act requires).
Just days later, EPA agreed to settle an action it had brought against Range Resources, a Texas natural gas company.
EPA initially claimed that Range’s use of hydraulic fracturing (commonly known as “fracking”) had caused methane contamination of the local water supply. Once it was proven that the methane in the aquifer had migrated naturally from an entirely different geological formation than the one from which Range was pumping gas, EPA shifted ground, claiming that the law didn’t require it to prove or even allege any connection between Range and the contamination.
Given the decided anti-EPA tenor of oral arguments, one can only assume that the agency opted to cut its losses, rather than suffer another legal defeat that could have significant implications for future cases.
EPA also suffered a major setback last December, when a court stayed the agency’s Cross-State Air Pollution Rule less than two days before it was set to go into effect.
The Cross-State Air Pollution Rule is supposed to regulate emissions from one state that drift downwind into other states, imperiling the latter’s ability to meet EPA air quality standards. While that sounds sensible, the reality is that EPA’s new rules are based not on what is happening today but on what its computer models predict may happen in the future.
Unfortunately for EPA, these decisions represent just the tip of the iceberg when it comes to the agency’s potential legal woes. Over the last three years, EPA has aggressively advanced an environmentalist agenda on a whole host of issues ranging from global warming to ozone. Many of these actions are now also being challenged in court, and involve the same flaws that led to the recent court losses.
If these first decisions are any sign of what is to come, EPA’s legal losing streak may be only just beginning.
Josiah Neeley is a policy analyst for the Armstrong Center for Energy & the Environment at the Texas Public Policy Foundation.