Last week, Judge John Preston Bailey ruled that EPA had violated a non-discretionary duty by failing comply with the requirement of § 321(a) of the Clean Air Act that it:
Conduct continuing evaluations of potential loss or shifts of employment which may result from the administration or enforcement of the provision [sic] of the Clean Air Act….
I’ve noted in the past that good lawyering matters. Why do I repeat that now? Because I think that Judge Bailey probably got this one wrong, but EPA and DOJ did nothing to help the government’s cause and much to harm it. What did they do wrong?
- First, EPA failed to acknowledge that in the early 1970s, EPA actually performed such analyses – before § 321 was even added to the CAA! – but EPA stopped for reasons EPA cannot even determine. That EPA previously performed such analysis sure makes it look as though EPA recognized their utility and their feasibility.
- Gina McCarthy repeatedly asserted that EPA had no obligation to perform the required analyses and that such analyses would be “of limited utility.” This is an argument for Congress not to have enacted it, but it hardly justifies EPA’s noncompliance. Moreover, these statements made EPA’s later arguments to the court that the Regulatory Impact Analysis that EPA does perform satisfies the requirements of § 321 ring hollow. Instead, the Court – rightly – rejected EPA’s argument as made purely for purposes of defending the litigation.
I should note that there are serious issues about whether § 321 imposes a non-discretionary duty and whether the plaintiffs have standing. EPA could win those issues on appeal, but it’s not obvious to me that EPA will or should. I think EPA’s strongest argument would have been, had it been handled differently, that the specifics of the requirement are sufficiently ambiguous that EPA has leeway in how to comply and that the RIAs were and are sufficient.
And why is this mess Ralph Nader’s fault? Well, in 1971, he testified before Congress that transparency on the economic impacts of EPA regulations was necessary to maintain public support. Indeed, Nader actually proposed that Congress look into:
Requiring the Administration of [EPA] investigate every plant closing or threat of plant closing involving 25 or more workers, which he has reason to believe results from an order or standard for the protection of environmental quality.
OK, that’s not precisely what § 321(a) provides, but it’s good to be able to blame Ralph Nader for something.