No Intelligible Principles

The EPA's Record in Federal Court

Executive Summary

All federal agencies have some share of their policy decisions challenged in court. But most federal agencies win most of the time. Federal courts generally defer to legislative agencies’ policy decisions. As a general rule, courts will only strike down a federal regulation for one of three reasons: 1) the regulation is unlawful; 2) the regulation is arbitrary and capricious or an abuse of discretion, or 3) the regulation was not issued in accordance with procedural requirements.

The Environmental Protection Agency appears to be an exception to the general rule that courts defer to agency decisions. Over the past seven years, the EPA suffered losses in the majority of cases filed in the primary court of jurisdiction for challenges to environmental regulations. During Carol Browner’s tenure as EPA Administrator, federal courts struck down EPA rules requiring the sale of electric cars in eastern states, mandating minimum ethanol content in reformulated gasoline, and requiring state regulators to consult with federal wildlife agencies before approving Clean Water Act permits, among many others. The EPA lost many different types of cases, involving allegations of both excessive and insufficient regulation.

Most challenges to EPA regulations are heard in the U.S. Court of Appeals for the D.C. Circuit. This court has primary or exclusive jurisdiction over the regulatory activities of most federal agencies. Several environmental statutes contain jurisdictional provisions that grant the D.C. Circuit exclusive venue over all challenges to regulatory actions promulgated under those laws. An analysis of challenges to EPA regulations and final agency actions in the D.C. Circuit during the Clinton Administration finds that the EPA wins fewer than half of its cases before the D.C. Circuit.

  • Of the 69 cases analyzed, the EPA won only 23, or one-third (33.33 percent) of those in which the court considered the merits of the challenge.
  • In over half of the cases (53.62 percent), the D.C. Circuit struck down all or a substantial portion of the challenged rule.
  • In the remaining cases (13.04 percent) the court dismissed the challenges on ripeness or standing grounds, or otherwise held the challenged EPA action to be unreviewable in federal court. In these latter cases, the court never considered the substance of the challenge to the EPA’s rule.

EPA’s record in the D.C. Circuit is substantially worse than one would expect given the judicial doctrines of deference to agency fact-finding and policy preferences. Indeed, it is substantially worse than that of federal agencies as a whole as found in prior analyses.

Several of the EPA’s losses are quite significant in the context of environmental policy, raising question about the rigorousness of the agency’s policy evaluation and development, as well as the propriety of the current administration’s priorities and policies. In case after case, the court has found the Browner-administered EPA acting with little regard for the limits or obligations of its statutory authority, and with little regard for the need to explain the basis for its decisions.

Some of these problems may not be solely a function of the agency’s internal structure or staff competence as much as they are a result of the agency’s statutory mandates and the over-zealousness of the politically appointed EPA leadership. In addition, the complex nature of EPA’s policymaking responsibilities, the combination of intricate technical and scientific issues, and the controversial nature of EPA’s regulatory efforts combine to make the EPA’s job particularly difficult. However, a comparison of the EPA’s record with that of the Occupational Safety and Health Administration (OSHA), a controversial federal agency that also regulates highly complex matters, suggests otherwise. OSHA has not had the same difficulties as the EPA in defending its regulatory determinations in court. One possible reason for OSHA’s favorable court record is that 1980 the Supreme Court set very clear standards for OSHA rulemakings. This court decision has forced OSHA to engage in a more rigorous assessment of the risks posed by substances it wishes to regulate. OSHA’s experience shows that more searching and consistent judicial review of EPA actions are not a threat to the protection of public health. Quite the contrary, more demanding judicial review could improve priority setting within the agency.

It is difficult to review EPA’s record in federal court and not conclude that the agency has a problem. Yet there is no silver bullet to the problem of the EPA’s approach to regulation. All three branches of government can take steps to improve EPA regulatory decisionmaking and accountability. Whatever the nature and extent of its statutory mandate, it is important that the EPA administer its responsibility in a faithful and accountable manner.

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