Last week, D.C. Circuit Court of Appeals rejected challenges to EPA’s “Revised Cross-State Air Pollution Update Rule”. The Court found that the Rule was “an appropriate exercise of EPA’s statutory authority”.
I find the decision noteworthy for two reasons. First, the decision is a full-throated endorsement of judicial deference to agency decision-making. Of course, this isn’t a Chevron case; it’s not about deference to agency interpretation of its statutory authority. It’s about good, old-fashioned, arbitrary and capricious review. Still, the Court’s language was pretty eye-catching. I’ll just note a few of the court’s statements:
[a]gency determinations based upon highly complex and technical matters are entitled to great deference.
[W]e will give an extreme degree of deference to the agency when it is evaluating scientific data within its technical expertise.
Statistical analysis has been described as perhaps the prime example of an area of technical wilderness into which judicial expeditions are best limited to ascertaining the lay of the land.
The reviewing court also will not take it upon [itself], as nonstatisticians, to perform [its] own statistical analysis—a job more properly left to the agency to which it was delegated. [I]t is only when the model bears no rational relationship to the characteristics of the data to which it is applied that [the reviewing court] will hold that the use of the model was arbitrary and capricious.
You get the idea. I also point out that Judge Neomi Rao, every conservative’s favorite anti-regulation judge, joined the opinion. Of course, she could well be thinking about what may be sauce for the gander in a few years, when the Court might be reviewing another Republican administration’s proposal to make NAAQS less stringent.
The other important aspect of the decision was its support for EPA’s use of a modeling approach based in part on its need to get the Revised Rule in place quickly. The Court found that the urgency to act, emphasized by prior court decisions giving short shrift to requests by EPA to delay issuing rules under the Good Neighbor provisions of the CAA, helped justify EPA’s approach.
Given the limited amount of time EPA had to complete the rulemaking for the Revised Rule, we discern that EPA reasonably chose to use existing air quality modeling and contribution information to derive an appropriately reliable projection of air quality conditions and contributions in 2021.
In short, EPA still gets substantial deference in its technical judgments, and sometimes it’s more important to get those judgments into law than it is to refine them until they are perfect.