The EPA and the Terrible, Horrible, No Good, Very Bad Day(s)

Before we SCOTUSe wreaks new havoc at 10 a.m., we can review last week's old havoc. This post is by my FIU colleague Alex Erwin, who teaches and writes in environmental law.

Thursday was a terrible day for EPA (and frankly any American that had the misfortune of watching the presidential debate or the US v. Panama game at Copa America …).  To start things off, using its shadow docket magic, the Supreme Court stayed EPA’s Good Neighbor Rule in Ohio v. EPA.  Mr. Rogers would not be pleased.

Under the Clean Air Act, Congress tasked EPA with setting standards for common air pollutants.  Once a standard has been set, the states are charged with implementing those standards by developing a State Implementation Plan (SIP).  While the states have great latitude in how they meet the federal standard, the CAA requires states to be good neighbors.  Air pollution obviously travels, and this provision prevents states from developing a SIP that would dump air pollution onto its downwind neighbors in order to meet the standard in-state.  If EPA, however, believes a SIP is insufficient, it can promulgate its own plan, known as a Federal Implementation Plan (FIP).  In this case, Ohio and at least 18 other states messed around and got FIPped.  EPA proposed a single FIP that would cover 23 states.  The rule had already been temporarily stayed in over half of these states by the district courts, and Justice Gorsuch (joined by the other men on the Court) obliged Ohio granting emergency relief.

It’s been a long time since EPA won a case in front of the Supreme Court – the current conservative majority has routinely found that EPA has overstepped its authority.  This time around there is no need for the “major questions doctrine” of West Virginia or the “clear statement rule” of Sackett – instead, it is just a particularly nitpicky application of arbitrariness review.  What Ohio does have in common with those previous cases is, in my view at least, an over emphasis on the role of states in environmental protection.  The majority opinion is happy to harp on the fact that SIPs are the “primary responsibility” of the states, while significantly downplaying EPA’s mandatory role in ensuring compliance with air quality standards.

The majority holds EPA to task for failing to adequately explain its final rule, especially in response to submitted comments.  It is all a bit technical, but basically Ohio argued that the models the rule is based upon relied on the rule applying to all 23 states and, thus, if that base assumption is incorrect, then the estimates generated could be wrong when applied only to states that remain covered under the rule.  Gorsuch says the rule was “not reasonably explained” because it did not address this issue directly.  I agree with what Dan Deacon wrote on the Yale JREG Notice and Comment blog – the majority basically buys everything Ohio was selling hook, line, and sinker, while holding the agency to a much higher standard.  As Justice Barrett discusses in her dissent, EPA claims that it did address this issue (when it included a severability clause in the rule), that the issue was never directly raised during notice and comment, and that the models are not dependent on the number of states included.  The majority is happy to give the states leniency here, but not EPA.  Ohio’s arguments were good if they were close enough, but EPA’s needed to be perfect.  I don’t know how precedential this case will be, but it certainly seems wrong to me. 

Not done with ruining Administrator Regan’s day, the Court also handed down SEC v. Jarkesy.  Here Chief Justice Roberts, joined by the other 5 conservatives, stripped the SEC of its ability to seek civil penalties in an administrative proceeding, holding that the 7^th Amendment entitles the defendant to a jury trial.  While EPA was not directly involved, Jarkesy could cause EPA serious problems.  Right now, the agency hands out hundreds of civil penalties a year via in-house administrative proceedings.  As currently structured, DOJ ENRD handles enforcement cases in federal court.  If Jarksey is applied to block EPA from seeking civil penalties in-house, the increased caseload will certainly stretch DOJ’s capacity to the brink.  This all just means fewer polluters pay.

And Friday was even worse!  The Supreme Court killed Chevron once and for all in Loper Bright Enterprises v. Raimondo.  As far as I can tell, it replaced it with even more judicial aggrandizement!  Looking narrowly at the two cases themselves, it seems fitting to me that the decision in Loper Bright directly benefits an extractive industry just like the original decision in Chevron did.  Business interests once again trump the environment at the Supreme Court.  While the case was ostensibly about who has to pay for monitors on fishing vessels, Loper Bright ended up just a vessel for the court to do away with Chevron deference.

Hot takes are raining in on all sides as to whether the death of Chevron is the most consequential thing to happen or if it will be a big nothingburger.  They didn’t offer divination where I went to law school, so I will refrain from much prognostication.  All I’ll say is that I was struck (maybe bludgeoned is a better word …) by the idea that there is one singular “best” meaning of a statute, and that meaning can only be divined by reviewing courts.  What inevitably happens when lower court judges, unmoored by Chevron, come to different conclusions about what is best?  The Supreme Court takes so few cases a year, it will never be able to clear up every circuit split that inevitably pops up because the 5^th Circuit and 9^th Circuit are living in two separate realities.  In that case, which is “best”?

While I can buy that the judiciary is the better body to do purely legal statutory interpretation work, so much of what Chevron dealt with were questions where facts and specialized expertise do in fact matter.  Justice Kagan gives us a laundry list of these kinds of cases in her excellent dissent.  EPA and the other environmental agencies constantly deal with these kinds of interpretations and will be the agencies that suffer the most at the hands of activist judges without Chevron deference. 

To bring it back to Ohio, Justice Gorsuch gives us a great reason to doubt that judges always know best when it comes to science.  Despite explicitly reminding the reader that the court “reviewed over 400 pages of briefing and a voluminous record, held over an hour of oral argument on the applications, and engaged in months of postargument deliberations”, Justice Gorsuch repeatedly mixes up laughing gas (nitrous oxide or N₂O) with nitrogen oxides (such as NO or NO₂).  The opinion had to be corrected after the press caught wind of it!

As a final note – shout to Justice Kagan for adding more relevancy to my current research project!  She uses Fish and Wildlife Service’s interpretation of “distinct population segment” as it relates to populations of western gray squirrels as her lead example for the problems created by overruling Chevron.  I'm currently working on an article about intraspecific genetic variation and the Endangered Species Act – contrasting the Service’s decision to define the term “distinct population segment” via regulation with its decision to leave the also unclear “subspecies” undefined and thus determined on a case-by-case basis.  Stay tuned!