On February 8th, the U.S. Court of Appeals for the D.C. Circuit sided with NRDC and a coalition of public health groups, tribes, and states, ruling that EPA had illegally evaded the protective Clean Air Act safeguards requiring deep and timely reductions in toxic air pollution, including mercury, from the nation’s coal-fired power plants. The Court further ruled that EPA had illegally substituted a mercury pollution trading scheme for the protections required by the Clean Air Act. On the heels of the decision, EPA and utility industry spinmeisters were out in full force condemning the outcome and spreading nonsense like so much pollution from smokestacks. Readers of this site wondered about that spin and other aspects of the Court’s ruling, so I have developed these responses to some frequently asked questions.
EPA and industry representatives claim that the basis for the Court decision was purely a “technicality.” Is that true? EPA was required to impose the most rigorous pollution controls and deepest pollution reductions mandated by the Clean Air Act to cut all toxic air pollutants, including mercury, from power plants. If EPA wished to avoid this obligation, Congress required EPA to demonstrate that the toxic emissions from no power plant in the country would “exceed a level which is adequate to protect public health with an ample margin of safety and no adverse environmental effect will result from emissions from any” power plant. EPA could not make this showing and did not even pretend to do so. Instead, EPA concocted a series of tortured legal argument to evade these critical showings. The Court had no difficulty finding these arguments to be “not persuasive,” declaring further that EPA’s explanation “deploy[ed] the logic of the Queen of Hearts, substituting EPA’s desires for the plain text of” the law. It is no coincidence that EPA and certain industry representatives that dismiss the Court’s decision as a “technicality” were the same parties that authored or supported the illegal rule, willing to subject the American people to excessive and illegal toxic pollution without being able to show that the public and environment would not be harmed. This basis for the Court’s ruling is hardly a “technicality”; instead it is fundamental to the public health priorities of the Clean Air Act.
Is this the first time a federal court has mocked EPA legal arguments by comparing them to characters from Lewis Carroll’s “Alice in Wonderland”? Technically yes. But in a 2006 ruling, these same three judges on the D.C. Circuit Court of Appeals struck down yet another harmful and illegal EPA Clean Air Act rulemaking. The judges wrote that EPA’s fanciful legal position would make sense “only in a Humpty Dumpty World,” citing Lewis Carroll’s “Through the Looking Glass.” One might have thought the Mad Hatter a more apt Lewis Carroll character to invoke in the Court’s mercury ruling, since that name arises from the tragedy of hat makers in 19th century England suffering neurological damage from mercury used to cure the felt in hats. But the Court here found EPA’s actions more similar to the capricious Queen of Hearts in “Alice in Wonderland," since EPA had -- in the Court’s words -- “substituted [its] desires for the plain text” of the law.
Was EPA delusional or receiving bad legal advice to believe this rule actually would survive legal challenge? While it is tempting to believe EPA suffered from the same mercury-induced neurological damage that drove hatters mad in 19th century England, a simpler and more sinister explanation fits. I am confident that EPA political appointees had been advised by agency attorneys (the country’s finest clean air attorneys) – and no doubt by Justice Department attorneys too – that the mercury rule was unlikely to survive legal challenge. But the EPA political bosses did not care, or were prepared to run that extremely high legal risk – which amounts to the same thing in practice. EPA would be carrying industry’s (mercury-laced) water either by: (1) achieving the remote possibility that the grossly weaker, slower rules would survive legal challenge; or (2) the real bet, delaying power plant toxic controls by 4-6 years and saving utilities billions of dollars even when those rules were destined to be struck down in court. EPA lost but industry still won.
What does the Bush EPA have against the word “any”? Is it personal? It is true that this court ruling marks at least the third time that the D.C. Circuit has struck down an EPA Clean Air Act rulemaking for violating a statutory prohibition by defying the plain meaning of the word “any.” A 2006 D.C. Circuit ruling overturned an EPA attempt to exempt from pollution controls emissions increases resulting from “any physical change,” which the EPA interpreted to mean virtually no physical change. And a 2007 D.C. Circuit ruling rejected an EPA attempt to exempt from rigorous pollution controls the emission of carcinogens and other air toxics from “any facility which combusts any solid waste material.” One school of thought holds that the EPA’s vendetta is not directed at the word “any,” but rather at any two-syllable word ending in “y.” This would also explain the agency’s ridiculous legal position in a Clean Water Act case where the D.C. Circuit rejected an EPA rule in which EPA interpreted the law’s restriction on “daily” pollution releases to waterbodies to allow daily limits to be ignored in favor of weaker “annual” limits. (Yes, EPA had argued daily meant annual.)
The real explanation is more encompassing and therefore more accurate: there is a prevalent strain within EPA -- fostered by but not limited to political appointees – that approaches the responsibility of statutory interpretation with a linguistic relativism that verges on nihilism. Under this EPA school of thought and practice, words in statutes mean whatever EPA wants them to mean. While legal doctrines afford federal agencies discretion in areas where they are considered expert, for example in scientific matters, EPA abuses these doctrines in order to distort the act of reading the English language into a policy play thing. This is precisely why one sees courts resorting to rebukes that sound “like a civics lesson by an exasperated instructor” and “The Collected Works of Lewis Carroll” to characterize the absurdities of EPA’s positions.
EPA’s strained legal interpretations and its repeated defiance of statutes and court precedents have already caused long-term damage to the standing of EPA before federal courts, especially in the D.C. Circuit. But the more pressing concern, frankly, is that D.C. Circuit judges will exhaust the list of characters from “The Collected Works of Lewis Carroll” before EPA corrects its lawless behavior.
EPA’s spokesperson decried the Court’s ruling, saying it now means “the U.S. has no national regulation to cut mercury from existing power plants.” Isn’t that a bad outcome for the environment? To put it bluntly, EPA’s claim is disingenuous prattle. The actual national regulation that EPA was relying upon between now and 2017 to require mercury reductions from power plants remains in place and was unaffected by the Court’s ruling. So EPA’s claim is intentionally and cynically misleading for uninitiated readers who naturally would not know the full facts about EPA’s rule.
The illegal EPA mercury rule struck down by the Court had established a model two-phase cap-and-trade program for mercury: it set the first "cap" in 2010, corresponding to 29% reductions in national power plant mercury emissions, and the second cap in 2018 corresponding to 70% reductions. But EPA itself admitted that the rule’s phase I cap would be achieved entirely from coincidental mercury reductions achieved by another regulation, the so-called Clean Air Interstate Rule (CAIR) that reduces SO2 and NOx emissions and thereby achieved incidental mercury reductions. In other words, EPA’s illegal mercury rule required no mercury reductions beyond what another regulation was already achieving for the next 9 years.
This other regulation, CAIR, was completely unaffected by the Court's mercury ruling, and so were the mercury reductions that CAIR will achieve. So the Court's decision will not result in less mercury reductions being required under federal law than EPA was already counting on under another regulation (CAIR) between now and 2017. EPA's wounded complaint that there is no national regulation of mercury as a result of the Court's ruling is utter nonsense as a practical matter, since its illegal mercury rule did not require greater mercury reductions than CAIR -- which remains in force -- until 2018 anyway. And while the mercury rule’s defenders will argue that the phase II cap would have driven early reductions prior to 2018, those reductions would not be nearly as great as what the Clean Air Act requires for all new and existing power plants, or achieved as early as what the law requires.