Court Orders EPA to Promulgate Air Toxics Standards: A Taste of What’s to Come?

On Wednesday, federal Judge Christopher Cooper ordered EPA to promulgate emissions standards for 13 sources of hazardous air pollutants by June 30, 2020.  EPA admitted that it missed statutory deadlines to do so; the only argument was over how much time EPA should have.  EPA asked for 4 ½ years, while the plaintiffs suggested two.  Judge Cooper pretty much split the difference.

Why is the case important?  Only as a potential harbinger of injunctions to come.  

If Congress enacts even a significant portion of the budget cuts requested by President Trump, we’re going to see a lot more such cases, so the Court’s analysis is useful background.  Here are some key takeaways:

  • The agency has a “’heavy burden’ to demonstrate that a remedial timeline poses ‘an impossibility’”.
  • The heavy burden becomes even heaver “where the agency has failed to demonstrate any diligence whatsoever in discharging its statutory duty.”
  • Courts “should be wary of agency arguments that more time is needed to improve the quality or soundness of the regulations.

Perhaps the key point is yet another reminder that judicial restraint does not necessarily lead to conservative outcomes:

If the EPA finds the schedule set by the Clean Air Act to be unreasonable, the agency’s remedy lies with Congress, not with the Courts.

My crystal ball says that we’re all going to become much more familiar with this language in the next few years.

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