Federal Appeals Court Rejects Deadline Claim for EPA Endangerment Finding

Federal Appeals Court Rejects Deadline Claim for EPA Endangerment Finding

June 28, 2008 08:00

The U.S. Court of Appeals for the District of Columbia Circuit declined this week to order the U.S. Environmental Protection Agency (EPA) to complete its review within 60 days concerning the public health impact of greenhouse gas emissions (GHGs) from new motor vehicle exhaust.

In denying the request of Massachusetts and 16 other states and environmental groups, the Appellate Court on June 26, 2008 left EPA to continue to move at its own pace in responding to the April 2007 landmark decision of the U.S. Supreme Court in the case known as Massachusetts v. EPA. 127 S. Ct. 1438 (2007).

In Massachusetts v. EPA, the Supreme Court held that the EPA has the authority under the Clean Air Act to regulate GHGs from new motor vehicle exhaust. In sending the case back to the EPA, the Supreme Court said that the “EPA can avoid regulating GHGs only if it determines that GHGs do not contribute to climate change or if it provides some reasonable explanation as to why it cannot or will not exercise its discretion to determine whether they do.” 127 S. Ct. at 1462.  After roughly a year passed since that decision without formal EPA action, the petitioners urged the Appellate Court this Spring to issue an order setting a 60-day deadline for the EPA to act.

While Massachusetts v. EPA is limited directly in its applicability to new motor vehicle exhaust and most concerns the automobile industry, the case is important for other stationary sources of air pollution regulated by the Clean Air Act because the same statutory language at issue can be found in other sections of the Clean Air Act. The case, and the EPA’s regulatory response, therefore has broader impacts for other industries, including the energy industry.

While the one-sentence order of the three-judge panel this week simply rejected the request for a mandamus, Circuit Judge David S. Tatel wrote separately, concurring in part and dissenting in part, to explain his rationale for his vote; his writing sheds light on the details behind the latest development in climate change law and litigation.

Although a mandamus is an extraordinary remedy reserved for extreme circumstances, an administrative agency’s unreasonable delay presents such a circumstance because it “signals a breakdown of regulatory processes.”  Circuit Judge Tatel cited the following factors as guiding the DC Circuit Court’s evaluation of unreasonable delay claims: (1) time agency takes to decide must be governed by “rule of reason;” (2) where Congress specified deadline or timetable, this will supply content for rule of reason; (3) delays that might be reasonable in economic regulation are less tolerable when human health and welfare are at stake; (4) court should consider effect of expediting delayed action on agency activities of higher or competing priority; (5) court should consider nature and extent of interests prejudiced by delay; and (6) court need not find “impropriety lurking” behind agency inaction in order to find unreasonable delay.

In applying the factors, Judge Tatel concluded that factors (3), (4) and (5) are satisfied in this case. Human health and welfare are plainly at stake, ordering EPA to act would have little impact on other agency activities (this was a given in that the EPA has already prepared a draft of the endangerment finding and sent it to the White House for review), and the nature and extent of interests prejudiced by delay are deep and fundamental.

On the contrary, however, Circuit Judge Tatel found that factors (1) and (2) tip in favor of the EPA in that nothing in Section 202 of the Clean Air Act or the Supreme Court’s decision imposed a specific deadline by which EPA must decide whether a particular air pollutant imposes a threat to public health and welfare.  In addition, he said that there has been no case presented in which a court issued a mandamus for a delay of less than a year. “EPA has every right to issue regulations implementing its possible endangerment finding concurrently with that finding, and given the dramatic impact such regulations could have on the auto industry and American life generally, there is nothing inherently unreasonable in the agency’s taking over a year to develop them,” Circuit Judge Tatel wrote.

In suggesting that White House intervention, rather than EPA inaction, is likely at the root of the delay, Circuit Judge Tatel noted that the EPA administrator was on record last year indicating that the EPA would issue its finding and proposing regulations in response to Massachusetts v. EPA by December 2007 and that these documents were actually completed on time and submitted to the White House in December 2007. Several months later, in quoting from a letter from EPA Principal Deputy Assistant Administrator Robert J. Meyers to Massachusetts Attorney General Martha Coakley, Circuit Judge Tatel noted that the EPA was writing to Congress indicating that the EPA “does not have a specific timely for responding” to the Supreme Court.”  In March, EPA announced a new approach that signaled it was essentially postponing regulation indefinitely by announcing it planned to issue an Advance Notice of Proposed Rulemaking, which is a preparatory step antecedent to potential future rulemaking.

And so, Circuit Judge Tatel concluded, he would not deny the petition for mandamus but would rather hold it in abeyance, directing the EPA to file a detailed schedule for compliance and requiring the EPA to issue periodic progress reports. “In this way, we could ensure future compliance with the statute without having to speculate over the possibility of future agency delays,” he concluded.

Given the developments before the DC Court of Appeals this week, it now appears quite clear that the EPA intends to let the clock run out on the Bush Administration before issuing regulations in response to the Massachusetts v. EPA case, thus leaving this issue waiting for the next administration to handle in 2009 and beyond.

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