Earlier this week, a divided 9th Circuit Court of Appeals affirmed entry of a consent decree between the Sierra Club and EPA, resolving litigation over EPA’s failure to promulgate attainment designations for the sulfur dioxide NAAQS under the Clean Air Act.
I would have thought that entry of the settlement would be fairly straightforward. EPA misses deadlines with some regularity. Persons sue over such failures with some regularity. EPA then agrees to schedules with some regularity. Here, EPA agreed to a schedule – albeit one that purports to give it seven (7) extra years to make the required designations. The Sierra Club, for its part, agreed not to sue EPA again over the designations, so long as EPA keeps to the schedule.
Several states objected, on three grounds. First, they argued that the consent decree improperly disposed of their claims. The short answer to this was that the decree does no such thing; the states are still free to litigate EPA’s failure to timely make the required designations. Second, they argued that the decree imposes obligations on them, even though they are not a party to it. However, as the majority noted, the obligations to which the states are subject are not as a result of the decree; they are the result of EPA’s so-called Data Requirements Rule, which EPA separately promulgated in order to obtain the information necessary to make the designations.
The final argument is the one on which I want to focus. The states – and the dissent – argued that the decree was tantamount to judicial legislation, because, by giving its imprimatur to a seven-year delay, the Court effectively amended the statute. I’m sorry, but I don’t see it. The Court isn’t amending the statute; it’s recognizing reality. Once EPA misses the deadline, it’s impossible to order EPA to go back and promulgate the designations timely. Nor is it possible to issue an order requiring EPA to promulgate the designations instantly.
The argument does nonetheless raise an important issue of statutory interpretation. When I was in law school, my then-Professor Guido Calabresi taught a course on his book A Common Law For The Age Of Statutes. The basic problem addressed by the book was that times change and legal requirements change. Judges have authority to revise the common law if precedents no longer serve their purpose. Judges, however, have no authority to amend statutes; they are effectively written in stone.
Amending statutes is supposed to be Congress’s right and responsibility. However, it ignores reality to drop all statutory problems in Congress’s lap and blindly take the position that Congress can amend a statute if it so chooses.
We live in an increasingly complex world. Some of the deadlines in the CAA are no longer practical, if they ever were. I don’t think that the Court here amended the Clean Air Act, but it’s at least worth discussing whether allowing courts limited authority to do so would be such a bad idea.