Industry Pleads That EPA Has "Discretion" to Violate Clean Air Act

Industry lobbyists have stooped to a new low in their furious campaign opposing stronger protections against smog pollution. They now have resorted to arguing that the Environmental Protection Agency has “discretion” to maintain Bush administration smog standards that EPA Administrator Lisa Jackson has acknowledged forthrightly are “not legally defensible.” So virulent is the lobbyists' opposition to stronger smog standards for Americans, they now are urging the president to block EPA from a duty to follow the law that the lobbyists denigrate as merely "voluntary."

Industry lobbyists realize fully they do not have the science or the law on their side. Nor do they have public opinion on their side, considering the lobbyists want to deny Americans their right to clean air guaranteed by the Clean Air Act.

So the lobbyists have rallied around a set of talking points arguing that (1) the EPA and president should defer any action on the smog standards until 2013, after the next presidential election; and (2) the Obama administration's actions to revisit and reject the 2008 Bush smog standards are purely voluntary and discretionary decisions that should be abandoned.

The first point allows industry to appeal to the president on nakedly political, electoral grounds, while simultaneously crossing their fingers that a new president will be elected. 

But it's the second point that is worth examining more closely, in the words of the lobbyists themselves:

  • “It’s pretty simple, it’s purely discretionary and it sits on the president’s desk,” said American Petroleum Institute President, Jack Gerard.
  • "[W]orst of all, EPA's action is completely voluntary." August 3rd industry coalition letter to the president.
  • Opposing a "rule [that the administration] is under no obligation to impose...." Op-ed by John Engler, President of Business Roundtable.

These industry representatives believe that instead of revising the smog standards today, EPA should maintain the 2008 Bush smog standards that EPA's Jackson has acknowledged [pdf] to be unprotective and "not legally defensible given the scientific evidence." Mind you these Bush standards have been challenged in court by over a dozen states and cities, along with public health groups such as the American Lung Association and NRDC.

But industry lobbyists insist EPA and the president have the discretion to maintain and defend illegal standards despite Jackson's recognition that this would be, well, illegal.

In one sense, I suppose these lobbyists have a point. If your starting point is lawlessness, and you want EPA to continue to break the law, then deciding whether to follow the law or not is "voluntary" and "discretionary," in that peculiar sense. Knocking over a liquor store is voluntary too in the same sense.

But that's not how real people think. We expect government officials to follow and enforce the law. Americans believe government should operate according to the rule of law, and that breaking the law should not be considered merely an act of "discretion."

It turns out not even industry lobbyists believe EPA has discretion to break the law when industry contends that EPA has acted lawlessly. I've been a practicing environmental attorney for nearly twenty years -- representing industry, EPA and now the NRDC at various points during my career. Never have I seen industry argue to a court that it's OK for EPA to get away with breaking the law because the agency has discretion to do so.

Worse, here's a dirty little secret that these industry lobbyists do not like to highlight. At the same time they are arguing EPA has the discretion to maintain Bush smog standards that Jackson considers unlawful, some of these same industry groups are challenging the Bush standards in court and alleging they are unlawfully stringent. You can't make this stuff up.

So industry believes EPA possesses discretion to break the law when EPA believes clean air standards must be strengthened. But industry also believes EPA lacks discretion to break the law when industry believes clean air standards must be weakened. Natch.

Industry's arguments have become a Rubik's cube of internal contradictions and hypocrisy, and no matter how many times they twist and turn, they can't make it all fit together.

Succumbing to industry's desperate appeals would put the Obama administration in the shameful position of defending Bush administration standards that Administrator Jackson considers legally indefensible -- in court against the American Lung Association, and 14 angry states including New York, California and the president's own state.

But those are not industry's concerns. Heck, industry would be in court too trying to tear down the Bush standards and replace them with something even weaker. So it's in industry's cynical interest to keep those standards and the lawsuit alive long enough to try to revert to even less protective standards.

Here's what you will never see in any of the industry propaganda or talking points or letters to the president: any mention of Jackson's public acknowledgment in a letter to Senator Tom Carper (D-Del.) that the 2008 Bush smog standards are "not legally defensible given the scientific evidence." (Google it for yourself.)

Because if the industry arguments openly recognized that Jackson believes their entreaties to be illegal and harmful, the implications of industry's desperate appeals would become excruciating: that industry wants EPA to break the law to suit industry, the American people be damned.

So industry is more than willing to stoop that low. But even they have the discretion not to openly admit it.