Tag: administrative law

The Logic of Sue and Settle

WATER_Harpers Ferry_MHoldenBy Daniel Carpenter-Gold—May 6 at 5:46 p.m.

Courtney McVean and Justin Pidot’s article, Environmental Settlements and Administrative Law, appearing in Volume 39.1 of the Harvard Environmental Law Review, addresses the practice of federal agencies settling with interest groups in litigation over the agencies’ regulatory practices. This “sue and settle” practice is not new, but its use, particularly by the Environmental Protection Agency (“EPA”), has received increased resistance in recent years—the Chamber of Commerce, Center for Regulatory Solutions, and American Legislative Exchange Council have each published documents decrying EPA’s settlements in challenges to regulations brought by environmental organizations.

The article explains that “sue and settle” is appropriate, both as a legal question and a regulatory tool. Through a series of case studies, McVean and Pidot show that, while settlements may require an agency to allocate resources within their budget, take additional procedural steps, or even take action on a regulation by a certain deadline, these settlements remain within the bounds of agency discretion. Furthermore, the authors argue, the judiciary is both willing and able to refuse settlements or consent decrees that require agencies to act improperly.

McVean and Pidot do an excellent job of refuting the claim that agencies’ practice of settling with interest groups is inappropriate. But why is settlement such a popular tool in the first place?

As the authors note, a desire to conserve agency resources might not be as important as it would seem, since the Department of Justice—which would represent the agencies—almost never charges for its services. However, a potential reason for settlement is concern about setting legal precedent: as other scholarship has noted, defendants who expect to face many similar cases might be expected to pick to litigate only the cases they are most likely to win, and to either delay or settle any cases brought prior to winning favorable litigation to prevent the development of adverse precedent. Agencies might be slightly more constrained in this approach than other defendants because they will almost always be litigating in the D.C. Circuit—but this also makes the precedent of that court all the more crucial.

A third reason to pursue settlements is likely unique to agency suits: a desire to tie the hands of the agency. In addition to the substantial requirements that stem from the Administrative Procedure Act, agencies face vicious political and public-opinion battles in what has been called the “blood sport” of contemporary regulatory politics. So, although it might seem like a constraint on agency discretion, a binding agreement to take steps toward regulation could actually serve as a shield against political pressure to delay regulatory action.

Seen in this light, settlements are not just acceptable under administrative law, they might even be preferable in some circumstances. A recent example is a consent decree between EPA and a group of environmental organizations requiring the agency to “tak[e] final action” on proposed coal-ash regulations. EPA had attempted to formulate new regulations after a high-profile 2008 spill, but, even though the agency had resolved to issue a proposal by the end of 2009, it failed to do so due in part to industry pressure. National politics around the 2012 election led to further delay, and the regulation remained stalled until Earthjustice mounted a legal challenge to EPA’s inaction, resulting in a settlement under which EPA agreed to adopt new rules. As a result, EPA promulgated a promising (though perhaps not perfect) rule to regulate coal ash at the end of 2014.

Obviously it is impossible to know whether EPA administrators Lisa Jackson or Gina McCarthy would have rather issued regulations at an earlier date. But the fact that EPA had gone so far as to set a deadline for itself in 2009 indicates that it had hoped to be able to resolve the issue one way or the other. At least partially due to external resistance to further regulations on the coal industry, however, the regulation was pushed off for years, until a suit and settlement put the EPA back on track. It is hard not to see that as a benefit—not only for the environmental groups, but also for the agency itself.

Exploring the EPA’s New Power Plant Regulations with Professor Jody Freeman and Professor Richard Lazarus

Jody Freeman, Archibald Cox Professor of Law and founding director of the Environmental Law Program at Harvard Law School.
Jody Freeman, Archibald Cox Professor of Law and founding director of the Environmental Law Program at Harvard Law School.

By Samantha Caravello -— October 14 at 12:11 p.m.

[Update: a video of Professor Freeman and Professor Lazarus’s talks at the Harvard University Center for the Environment is available here.]

In June, EPA released a proposed rule for regulating greenhouse gas emissions from existing power plants pursuant to its authority under Section 111(d) of the Clean Air Act (“CAA”). The rule sets forth state-specific goals for emissions reductions but gives states flexibility as to how they will meet those targets. Ultimately, the rule will lead to a 30 percent cut in carbon dioxide emissions (from 2005 levels) by 2030. If implemented, the rule will be a critical component of President Obama’s environmental legacy and a chance to show the world that the United States is serious about climate action. Of course, with this great game-changing power comes great controversy – in fact, twelve states have already sued the EPA over these rules, claiming that the agency lacks authority to regulate greenhouse gases under the 111(d) provision.

This challenge and others will play out over the coming months as the comment period continues and a final rule is ultimately issued, but last week Jody Freeman and Richard Lazarus, professors at Harvard Law School and preeminent legal scholars, gave the Harvard University community a preview of the major arguments that will be made. The talk, “The President’s Efforts to Combat Climate Change Without Congress: What is EPA Proposing to Do and is it Legal?” was sponsored by the Harvard University Center for the Environment, and it was given to a standing-room-only crowd.

Richard Lazarus, Howard J. and Katherine W. Aibel Professor of Law at Harvard Law School.
Richard Lazarus, Howard J. and Katherine W. Aibel Professor of Law at Harvard Law School.

Professors Freeman and Lazarus gave an overview of the proposed 111(d) rule and of the Supreme Court’s recent history with the CAA and greenhouse gases. Last term, the Court issued two rulings that were largely favorable to EPA’s ability to exercise its authority to regulate global warming pollution under the CAA: EPA v. EME Homer City Generation and Utility Air Regulatory Group v. EPA (“UARG”). However, the UARG opinion contained what some consider to be “warning shots” to the EPA, signaling the Court’s potential unwillingness to accept the premise that Congress intended to grant the agency broad authority to regulate power plant greenhouse gas emissions, and by extension the nation’s energy sector, with one provision of the CAA, Section 111. After discussing other, threshold, complications with the new rule, Professors Lazarus and Freeman identified this question of EPA’s authority as likely to be the most significant and controversial issue. Section 111 of the CAA gives EPA the authority to create regulations under which states must submit plans that set standards of performance for power plants, with standard of performance defined as based on the best system of emission reduction. Where the potential for legal challenge comes in is that EPA defined “system” broadly, to include “anything” that reduces emissions from the power plants. This makes sense on its face, as a literal reading of the statute, but its practical implications give EPA extremely expansive authority. What will win these challenges, according to Professors Freeman and Lazarus, is really good lawyering—there are arguments on both sides, but it all comes down to convincing five justices, with Justice Kennedy likely providing the key swing vote.

The additional insights into the Supreme Court’s view of EPA’s regulatory authority imparted by Professors Lazarus and Freeman can’t be accurately captured in a short blog post, but Harvard Environmental Law Review readers will soon have the chance to hear their full thoughts on these issues: Both professors will be authoring pieces in ELR’s Fall 2014 issue as part of a series of essays exploring the implications of the UARG decision, including the potential impact on the legality of EPA’s new 111(d) rule. The story of EPA’s 111(d) regulations is just beginning, and ELR and the Harvard environmental law community are fortunate to have world-class environmental scholars Professors Lazarus and Freeman to offer their insights along the way.

Pebble Mine and EPA’s Veto Authority Under the Clean Water Act

Yellowstone_CaravelloBy Cecilia Segal -— October 7 at 9:50 a.m.

Since 2011, the Pebble Limited Partnership (“PLP”) has been attempting to build a large-scale copper and gold mine in the Bristol Bay watershed in southwestern Alaska.[1] The mine proposal includes an open pit mine, a tailings facility, a power generating station, a deepwater port, and substantial transportation infrastructure, and is slated to operate for at least 20–25 years.[2] Though exact design specifications have not yet been determined, the mine is expected to be one of the largest open pit mines in the world.[3] In light of recent developments, however – including a rare move by EPA to invoke its veto authority under § 404(c) of the Clean Water Act – the mine’s future is in serious doubt.

PLP maintains that the project can coexist with the surrounding environment. Many disagree with this contention. The Bristol Bay watershed is a delicate ecosystem, providing spawning grounds for all five species of Alaska salmon and habitat for over 40 species of mammal and 190 species of birds.[4] Most notably, the watershed is home to the world’s largest sockeye salmon run.[5] The watershed also supports subsistence activities for 25 communities of Alaska Natives [6]; the Native village of Newhalen, for example, averages a 700 pound per capita harvest each year.

With so much at stake, the mine has understandably attracted a great deal of controversy. Indeed, the opposition has expanded beyond the traditional environmental organizations to include celebrities like Robert Redford and jewelry giant Tiffany’s. Ultimately, petitions from several federally recognized tribes and concerned individuals led the U.S. Environmental Protection Agency (“EPA”) to conduct an assessment of the mine’s potential environmental impacts on the region.

In January 2014, EPA released its final assessment. Following that assessment, EPA issued a Proposed Determination in July 2014 to bar development of the Pebble mine, citing the “high ecological and economic value of the Bristol Bay watershed and the assessed unacceptable environmental effects that would result from such mining.”[7] EPA provided a period for public comment on the proposal and held public hearings throughout Alaska. The author of this blog post attended the hearing in Anchorage on August 12, 2014.

EPA’s Proposed Determination rests on its authority under § 404 of the Clean Water Act (“CWA”). Although the mine would be located on state land, it is nonetheless subject to federal permitting requirements. Specifically, because the mine construction would require a significant amount of dredging, PLP must obtain a permit under § 404 of the CWA. These permits are issued by the U.S. Army Corps of Engineers. Under § 404(c), however, the EPA may prohibit or restrict fill activities if it determines that a project would have an “unacceptable adverse effect” on fishery habitat, including spawning and breeding areas.[8] Though sparingly used – EPA has only taken advantage of this provision on 13 occasions – the D.C. Circuit recently upheld EPA’s “veto” authority in Mingo Logan Coal Company v. EPA.[9]

Here, EPA’s use of the § 404(c) veto unleashed a new flurry of controversy and immediately sparked litigation – particularly because EPA’s actions occurred before PLP had applied for the § 404 permit. On May 22, 2014, for instance, PLP filed suit in federal court, arguing that EPA’s Proposed Determination was a “preemptive veto” and seeking an injunction to halt EPA’s process entirely. But on September 26, 2014, the District Court judge dismissed the suit.[10] Because EPA’s Proposed Determination was not a final agency action, the court held, PLP’s suit was premature.[11]

While PLP intends to challenge EPA’s final determination – which must be issued by February 4, 2015 [12] – the future of the project has been thrown into doubt. A number of factors signal the project’s demise, including significant costs and delays, heated public outcry, a loss of investors, EPA opposition, and a tailings pond breach at a similar mine in British Columbia in August, 2014. Given the project’s “near-moribund state,” it may not be capable of surviving the slew of permit application and review processes it must undergo prior to construction. Such a result would be a significant win for EPA and might encourage more use of its veto authority under § 404(c).


[1] See U.S. E.P.A., Proposed Determination of the U.S. Environmental Protection Agency Region 10 Pursuant to Section 404(c) of the Clean Water Act, Pebble Deposit Area, Southwest Alaska, ES-2 (July 2014), available at http://www2.epa.gov/sites/production/files/2014-07/documents/pebble_es_pd_071714_final.pdf [hereinafter “Proposed Determination”].
[2] See Proposed Determination at ES-2.
[3] Proposed Determination at ES-2.
[4] U.S. E.P.A., An Assessment of Potential Mining Impacts on Salmon Ecosystems of Bristol Bay, Alaska: Executive Summary, 6 (January 2014), available at http://www.epa.gov/ncea/pdfs/bristolbay/bristol_bay_assessment_final_2014_ES.pdf [hereinafter “Final Assessment”].
[5] Proposed Determination at ES-1.
[6] Proposed Determination at ES-1.
[7] Proposed Determination at ES-1; 79 Fed. Reg. 42,314 (July 21, 2014).
[8] 33 U.S.C. § 1344(c).
[9] 714 F.3d 608, 609 (D.C. Cir. 2013), cert. denied, 134 S.Ct. 1540 (2014).
[10] Pebble Ltd. P’ship v. EPA, No. 3:14-cv-0097-HRH , slip op. at 15 (D. Alaska Sept. 26, 2014).
[11] Id. at 14–15.
[12] 79 Fed .Reg. 56,365, 56,365 (Sept. 19, 2014).

Promises and Pitfalls in China’s New Environmental Protection Law

file0001225592472(1)By Daniel Carpenter-Gold—September 14 at 6:30 p.m.

To read more on this topic, look for Mr. Carpenter-Gold’s student note in the upcoming Volume 39.1 of the Harvard Environmental Law Review.

Chinese environmental policy has been rapidly modernizing over the past few years, likely in response to highly visible pollution. Among these changes, the Environmental Protection Law (EPL) has been almost completely rewritten to greatly strengthen the country’s environmental law regime. One-off fines (criticized as being far less than the actual cost of compliance with the law) are out; daily penalties (Art. 59), confiscation of equipment (Art. 25), and even jail time for “the person directly in charge” of the polluting entity (Art. 63) are in. The groundwork has been laid for a comprehensive emissions permitting system (Art. 45). Regions which fail to meet environmental targets designated by the central government will face blanket suspensions of the right to undertake new construction projects (Art. 44). Finally, a number of new avenues for public participation have been opened up (Arts. 53–58). Significant among these is the right, for some organizations, to bring litigation in the public interest against polluters (Art. 58).

Many of these provisions will be familiar to students and practitioners of US environmental law. This is no accident—substantial effort, by NGOs and the US government alike, has gone into encouraging the Chinese government to adopt more Western environmental standards. These projects have run the gamut from regular visits by EPA’s general counsel, to experts’ reports, to study tours for academics and practitioners, and they have paid off in the new EPL, whose language equals or even exceeds that of US environmental legislation.

In addition to borrowing from international experience, China has used its own local governments to experiment with expanded standing provisions. Environmental public-interest litigation in China has, over the past decade, been slowly introduced in some counties and municipalities. Although cases under these regulations have been almost exclusively brought by government-organized NGOs, they seemed to have demonstrated the viability of a Chinese environmental public-interest litigation system.

The central government, apparently encouraged both by the international community and by the success of such provisions at the local level, amended the Civil Procedure Law (CPL) in 2012 to grant standing to “relevant organizations” that bring lawsuits to address environmental harms. This should have enabled a new wave of litigation from environmental NGOs. Indeed, high-powered organizations such as the All-China Environment Federation attempted to file a number of cases after the change. However, outside of the regions which already had provided for environmental public-interest litigation, the courts have universally refused to allow cases brought under the amended law, offering only thin excuses or none at all.

Why couldn’t this policy, which has been in use for years in some parts of China and for decades abroad (with no greater specificity), succeed at the national level? The answer lies in the particular structure of China’s judiciary: the local governments in China control the budget and personnel decisions of local courts. Where the local government does not wish to have the expanded regulatory oversight that public-interest litigation brings, it can easily pressure the courts into refusing the cases. Neither US nor local jurisdictions which had implemented expanded standing provisions had to cope with the divide between central and local governments: in the US this was not an issue because of American judicial independence, and the Chinese localities which allowed environmental public-interest litigation were presumably already supportive of environmental protection.

Regulatory decisions are always of uncertain impact, and a country can be forgiven for taking paths already trod rather than experimenting on their own people. But borrowing policies from other countries, or even from their own subunits, can only work to the extent that the borrower carefully evaluates the differences between the two systems. In amending the CPL, China seems to have overlooked the problem of local-government resistance, presumably because the cases which were used in developing the law did not have this problem.

The experience of the 2012 CPL suggests that the public interest litigation provisions of the Environmental Protection Law may be weaker in practice than they appear on paper. The new law asks a lot of local governments, and particularly local Environmental Protection Bureaus (EPBs), the local-level agencies in charge of enforcing most environmental regulations, which are beholden to the governments at their level to the same extent that the local courts are. However, the EPL takes some steps toward strengthening central control over EPBs by allowing EPBs at a higher governmental level to discipline EPBs within their jurisdiction (Art. 67, for example). There is also talk of increasing central control of the court system, which could remove some of the local governments’ influence. There is likely to remain a substantial gap between the law on paper and the law as enforced, but the overall trend is toward strengthening governance and the rule of law. That’s good news for China’s environment.

It’s Raining Cert Petitions!: Last Term’s Biggest Supreme Court News

Supreme CourtBy Richard Lazarus — Sep. 11, 2014 at 9:05 a.m.

This article originally appeared in the September/October 2014 issue of The Environmental Forum. The Environmental Law Institute has graciously allowed the Harvard Environmental Law Review Blog to republish the piece.

The biggest environmental law news from the Supreme Court last term may well not have been the Court’s rulings in two high profile Clean Air Act cases. To be sure, both EPA v. EME Homer City Generation and Utility Air Regulatory Group v. EPA were true blockbusters. EME Homer, which upheld EPA’s ambitious rulemaking to combat interstate air pollution, was plainly a huge victory for the Environmental Protection Agency.

But, potentially more important, yet largely unnoticed and unreported, were the Court’s repeated denials last spring of a series of petitions filed by business interests seeking the Court’s review of a series of adverse appellate rulings. At one point the deluge of such petitions led one lawyer, who frequently represents environmental groups, to remark gamely, “It’s raining cert petitions!”

The reason for the onslaught is clear. The business community has in recent years enjoyed considerable success in persuading the justices to grant review in environmental cases that otherwise seemed to lack the obvious trappings of a cert-worthy case, lacking clear conflicts in the federal courts of appeals. Cases in which the potential for further agency action made unclear the actual, practical significance of the appellate court’s ruling. And even cases in which the solicitor general, after being invited by the High Court to express its views concerning whether review was warranted, recommended against.

In short, the Court often appeared to be operating on a hair trigger in considering business claims that the lower courts had endorsed overreaching of federal environmental laws. But this spring, the Court repeatedly said no, leaving industry lawyers a bit baffled by the Court’s sudden betrayal.

Four times business interests embraced what had heretofore been a winning strategy. They hired the best Supreme Court lawyers — the ones who know the Court best, and even more important, the ones the justices and their law clerks know the best and therefore might be more likely to give weight to their views. Former Solicitor General Paul Clement. Sidley & Austin’s Peter Keisler. And Stanford law professor and formal appellate judge Mike McConnell. The business petitioners recruited legions of amicus curiae to file briefs in support of the Court’s granting review. These briefs would invariably describe the “crippling,” “severe,” “intolerable,” “deleterious,” “crushing,” and “staggering” consequences to the nation’s economy if the Court left standing these adverse lower court rulings.

No one was better, however, than the Chamber of Commerce in describing the economic havoc and destruction that would occur absent the Court’s review. In each of the successive cases, the chamber’s predictions grew more dire.

Although candidly acknowledging that it would “difficult to overstate the importance” of the lower court’s ruling for business, the chamber did not shy away from doing its best to do just that. It described in one case how the “crippling uncertainty and costs” would “exacerbat[e]” existing energy shortages” because “power plants faced with a new onslaught of tort liability may choose to cease operations.” In another, the lower court’s ruling “will undermine the proper functioning of the nation’s integrated national market in transportation fuels.”

Not to be outdone by its competing predictions of economic cataclysm, the chamber contended in yet another case that a Second Circuit decision “would transform every public drinking water supply in this country — indeed every future supply — into a ready-made multi-million-dollar lawsuit.” It “would open the floodgates to claims against virtually every manner of human enterprise” and the “consequences could extend to all corners of our economy.”

Finally, the chamber described the “staggering” economic consequences of the D.C. Circuit’s upholding of EPA’s authority to override a Clean Water Act permit previously issued by the Army Corps of Engineers. That ruling placed at risk “over $220 billion of investment annually,” that in turn the chamber calculated generated $660 billion of downstream economic activity, or almost four percent of the nation’s Gross Domestic Product.

The Court nonetheless denied review all four times: first in Mingo Logan Coal Co. v. EPA in March; then Exxon v. City of New York in April, and twice in June, Gen-On Power Midwest v. Bell, at the beginning of the month, and finally in Rocky Mountain Farmers Union v. Corey, just before adjourning for the summer. No justice dissented.

There is, of course, a useful lesson here. Zealous advocacy is to be expected. But exaggerated advocacy is counterproductive, especially in the High Court when, by spring time, the justices’ law clerks are more seasoned and can more readily tell the difference between the two.

And, most happily, the chamber’s prophecies have not (yet) borne out. Whew!

 

Richard Lazarus is the Howard J. and Katherine W. Aibel Professor of Law at Harvard University.

Chevron Deference and Interpretive Authority After City of Arlington v. FCC

By Laura Myron

Cite as: Laura Myron, Chevron Deference and Interpretive Authority After City of Arlington v. FCC, 38 Harv. Envtl. L. Rev. 479 (2014)

[btn link=”http://harvardelr.wpengine.com/wp-content/uploads/2014/08/Myron.pdf” color=”forestGreen” size=”size-l”]View Full Article (PDF)[/btn]

A New Cost of Cost-Benefit Analysis?

LAND_arches_UT_alecharrisBy Gabriel DalyNov. 7, 2013 at 12:10pm

If an agency uses cost-benefit analysis (CBA) to inform its decision-making, what costs and what benefits should it consider? A case currently before the D.C. Circuit, White Stallion Energy Center, LLC v. EPA,[1] raises this issue. White Stallion suggests a tension between the incentives created by Office of Information and Regulatory Affairs (OIRA) review and those created by judicial review, such that an agency seeking to insulate itself from review from within the administration may end up exposing itself to increased risk of losing upon external (judicial) review.

White Stallion concerns one of the most important and expensive rules the EPA has ever promulgated: a regulation under Section 112(n)(1)(A) of the Clean Air Act (CAA) that requires oil- and gas-fired power plants to reduce their emissions of mercury and other hazardous air pollutants. The benefits of the regulation are staggering: monetized benefits of $37 billion to $90 billion, plus non-monetized benefits above and beyond that range.[2] But the costs are also significant – approximately $9.6 billion per year. Among the issues before the court is whether the statute requires EPA to consider these costs, as industry challengers to the rule contend. EPA argues that Section 112(n)(1)(A) – which permits it to promulgate regulations that are “appropriate and necessary” to address hazards to public health posed by oil- and gas-fired power plants – does not require the agency to take costs into account.

Regardless of how the D.C. Circuit resolves that question, the way in which EPA did consider costs raises an interesting issue with broad implications. EPA did tabulate costs and benefits in its rulemaking, not because it believed the CAA required it to do so, but because Executive Order 13,563 requires all agencies (to the extent permitted by law) to adopt regulations “only upon a reasoned determination that [their] benefits justify [their] costs.” EPA’s use of CBA in this context may be seen as an example of what Jennifer Nou has identified as agency self-insulation:[3] that is, an attempt to insulate the agency’s rule against review from within the administration at OIRA.[4] The tension, however, is that, in insulating itself from review from within the administration – by demonstrating very positive CBA scores – EPA may have exposed itself to liability in external review.

Under D.C. Circuit precedent, agency rulemaking will not be invalidated for failure to conduct a CBA if consideration of cost is not required by statute. But if an agency relies on a CBA in making its decision (even if it is not required to conduct a CBA), the agency’s analysis must be reasonable to survive judicial scrutiny.[5] Here, EPA explicitly did not rely on a CBA to make its “appropriate and necessary” finding; so the strength of the CBA will be irrelevant if the court affirms EPA’s legal theory that section 112 does not require consideration of costs. But if the court rejects this theory, EPA might be in real trouble. This is because EPA’s CBA estimated benefits from mercury reductions totaling just $4 million to $6 million. The vast majority of benefits from the regulation come from “co-benefits” due to reductions in particulate matter, PM2.5.[6] EPA’s decision to regulate oil- and coal-fired power plants was based on health effects caused by hazardous air pollutants, under a provision of the CAA specifically focused on hazardous pollutants.[7] PM2.5 is not a hazardous pollutant.[8] Thus, there is an argument that EPA’s consideration of the benefits of PM2.5 reduction was arbitrary and capricious because these benefits are statutorily irrelevant for the purposes of Section 112.[9]

In this case, the tension between intra-administration review and judicial review of an agency’s CBA will likely remain below the surface. EPA quite explicitly declined to rely on its CBA to justify its “appropriate and necessary” determination, and it has a very strong argument that this determination should be upheld under Chevron. But even if EPA is vindicated in the D.C. Circuit, the underlying tension between intra-administration and judicial review is unlikely to be resolved anytime soon.

This is because the tension between intra-administrative and judicial review highlights a larger problem: the shortcomings of our current environmental laws. Since the Reagan Administration, cost-benefit analysis has gained an increasingly prominent role in agency decisionmaking, and courts (the D.C. Circuit in particular) are increasingly likely to read cost-benefit balancing into statutes.

But the environmental laws have not been revised to reflect these policy choices.[10] Agencies, left trying to make sense of laws that have not been revised in decades, are left in limbo. To pass muster at OIRA, an agency must justify its decisionmaking in terms of costs and benefits. In a case like this one, where the costs are very significant but the benefits are even greater, EPA has every incentive to insulate its rule with a CBA highlighting those great benefits. But reliance on a CBA of this kind may create a risk that a court will invalidate the rule as arbitrary and capricious.


[1] No. 12-1100 (D.C. Cir.).
[2] 77 Fed. Reg. 9306 tbl.2.
[3] See Jennifer Nou, Agency Self-Insulation Under Presidential Review, 126 Harv. L. Rev. 1755 (2013). Nou suggests a “simple theory”: Under an anti-regulatory president, agencies will submit CBAs of poor quality to increase the costs of review for OIRA, making it less likely that OIRA will reverse the agency. Under a pro-regulatory president, agencies will submit high-quality CBAs to reduce the costs of review for OIRA, making it more likely that OIRA will approve the agency’s rule.  Id. at 1806–07. The agency-OIRA interaction here suggests a complication to Nou’s “simple theory.” The Obama Administration would surely be considered “pro-regulatory,” but EPA might still feel a need to insulate itself because of the sheer magnitude of this rule and its high political saliency.
[4] OIRA is not the only body within the Administration that participates in review, but “OIRA” is often used as convenient shorthand for this review process. See Cass R. Sunstein, The Office of Information and Regulatory Affairs: Myths and Realities, 126 Harv. L. Rev. 1838, 1856 (2013).
[5] See Bus. Roundtable v. SEC, 647 F.3d 1144, 1148–49 (D.C. Cir. 2011) (invalidating agency action as arbitrary and capricious because, inter alia, it “inconsistently and opportunistically framed the costs and benefits” of its rule).
[6] 77 Fed. Reg. 9306, tbl.2.
[7] See 77 Fed. Reg. 9306; CAA § 112.
[8] See Clean Air Act § 112, codified as amended at 42 U.S.C. § 7412(b)(1) (listing hazardous pollutants).
[9] See Motor Vehicle Mfrs. Ass’n of U.S., Inc. v. State Farm Mut. Auto. Ins. Co., 463 U.S. 29, 42–44 (1983) (holding that an agency acts arbitrarily when it considers statutorily irrelevant factors in its decision-making).
[10] Cf. Richard J. Lazarus, Congressional Descent: The Demise of Deliberative Democracy in Environmental Law, 94 Geo. L. J. 619, 629–32 (2006) (noting the lack of environmental legislation since 1990, with particular focus on the absence of new laws addressing substantive environmental issues, including climate change).

ELR Article Receives Praise in JOTWELL

TREES_Fall trees_New Haven_MHoldenBy Meg Holden — Oct. 30, 2013 at 3:42pm

If you’ve been reading the ELR blog, you might also be interested to know that all of our articles from Volume 37.2 are now available in print and on our website! One article, Administrative Proxies for Judicial Review: Building Legitimacy from the Inside-Out, by Emily Hammond and David Markell, recently received a favorable review in JOTWELL. Hammond and Markell’s piece explores how to build legitimacy from the “inside-out” when judicial review of agency actions is unlikely or unavailable. The article presents an empirical study of an EPA process that allows parties to petition EPA to withdraw a state’s authority to administer environmental statutes (which EPA has the authority to do if the state is inadequately implementing environmental laws). EPA’s decision to withdraw authority is within its enforcement discretion, and is largely not subject to judicial review. Hammond and Markell evaluated a set of petitions that spanned a 25-year period to determine whether EPA takes actions to legitimize its decisions with regard to the petitions. The authors found that despite the absence of judicial review (and the unlikelihood that EPA would actually withdraw a state’s authorization to implement the law), EPA independently engages in behaviors to create internal legitimacy. EPA works to resolve the petitions informally, investigating the concerns raised in the petitions and negotiating with states to reach substantive outcomes. Hammond and Markell draw a number of lessons from this case study, and highlight institutional design features that might enhance “inside out” legitimacy.

In its review of the piece, JOTWELL states that the article is “a thought-provoking and admirable” piece of scholarship, noting that it raises central questions of administrative governance, offers a theoretical framework for evaluating the performance of agencies within the administrative state, and ambitiously seeks to connect theory with practice.  With respect to this last feature of the article in particular – its connection of theory with practice – the JOTWELL reviewer notes that “[r]ather than articulating a theoretical framework and stopping there, the authors use their framework to structure their examination of actual agency process, to see how well the data fits the theory. This is good work. We need more of it.”

Don’t forget to check out the article, as well as the others in Volume 37.2, here!