Following President Obama's State of the Union speech earlier this month, in which he vowed to exercise existing legal authority to reduce air pollution that causes dangerous climate change, a House Republican chairman lashed out at the president's pledge. Congressman Ed Whitfield (R-KY), chairman of the House Energy and Commerce Committee's Subcommittee on Energy and Power,
warned that the Obama administration 'would have a big battle on their hands,' in the form of lawsuits, if the Environmental Protection Agency tried to cap GHGs on existing power plants, as many observers expect.
'Courts have overturned EPA quite a bit in the last four years,' Representative Ed Whitfield, a Kentucky Republican, said in an interview . . . .
Reading this, I decided to catalogue just how often courts have overturned EPA Clean Air Act rules in the past four years. And because Chairman Whitfield plainly believes that courts have rebuked EPA "quite a bit" in lawsuits brought by regulated industries, I decided to place the results of my research into context in two key respects: (1) by identifying lawsuits against EPA in which industry prevailed versus lawsuits in which environmental and public health groups prevailed; and (2) for purposes of historical context, comparing the litigation track record of the Obama administration EPA versus the Bush administration EPA.
The results of this research fail to bear out Chairman Whitfield's assessment. Indeed, courts have overturned few Obama administration Clean Air Act rules challenged by industry. Industry court losses have outnumbered victories by a factor of three to one.
And placed in historical context, even the relatively few industry victories challenging Obama administration Clean Air Act rules pale in comparison to the far higher number of court decisions overturning Bush EPA Clean Air Act rules challenged by environmental and public health groups.
We focused our research on Clean Air Act litigation in the U.S. Court of Appeals for the D.C Circuit. This is because (1) the Clean Air Act has been the most actively litigated environmental statute under the Bush and Obama administrations, as well as the source of the most frequent political criticism by Mr. Whitfield and his House Republican colleagues; and (2) the Clean Air Act grants the D.C. Circuit exclusive jurisdiction to hear legal challenges to national or regional clean air regulations. So the vast majority of Clean Air Act lawsuits are heard by this court.
We were assisted in this research effort by information that the Bush administration EPA provided the office of Congressman Henry Waxman (D-CA) at his request in 2008. EPA's General Counsel at that time, Roger Martella, provided Congressman Waxman with a spreadsheet detailing all Clean Air Act lawsuits brought against EPA between 2002 and April 2008. The spreadsheet identifies what type of plantiffs challenged Clean Air Act rules during this period (e.g., industry parties or environmental groups), and the outcome of the lawsuits (e.g., upheld in part or vacated).
We supplemented the information in this 2008 EPA spreadsheet with our own research in legal databases (Westlaw and Pacer) reporting all D.C. Circuit Clean Air Act decisions issued since April 2008. (Thanks for this daunting research project goes to my indefatigable colleague, Emily Davis, who shall forever remain 29 to her friends, notwithstanding the merciless march of time. Happy birthday, Emily.)
Here is the explanation for the lawsuit outcomes summarized below. The Clean Air Act cases in which environmental groups or industry groups are reported to be a prevailing party are ones in which these plaintiffs were successful on one or more disputed legal issues that resulted in a remand or vacatur of the challenged EPA actions. This classification also includes cases in which EPA agreed to a “voluntary remand” of one or more disputed issues, effectively because the agency conceded that it could not defend its legal position in the face of overwhelming statutory language or court precedents.
I then summarize the number of instances in which EPA prevailed entirely against industry or environmental group lawsuits, to place in context the agency's total or partial court losses.
EPA’s Clean Air Act Win-Loss Record in the D.C. Circuit During the First 4 Years of the Obama Administration
- Number of Clean Air Act cases in which industry parties have prevailed against Obama EPA rules: 5. These cases involved claims by industry that the rules were too stringent, unjustified or otherwise inconsistent with the Clean Air Act in some way.
- Number of Clean Air Act cases in which the Obama EPA has prevailed entirely against lawsuits by industry parties: 15. In truth, this number under-counts the number of industry court losses, since just one of those cases – Coalitiuon for Responsible Regulation v. EPA [pdf] – involved consolidated industry lawsuits challenging three EPA Clean Air Act greenhouse gas pollution rules: the Endangerment Finding, the Tailoring Rule and greenhouse gas standards for automobiles [pdf]. We only counted this as one complete court victory by EPA when in truth it represents three.
- Number of Clean Air Act cases in which the Obama EPA has prevailed entirely against lawsuits by environmental & public health groups: 6. Note that some of these cases since 2008 involved lawsuits over rules issued by the Bush EPA that the Obama EPA chose to defend in court against environmental and public health group challengers.
- Number of Clean Air Act cases in which environmental & public health groups have prevailed against Obama EPA rules: 5. Note that some of these cases since 2008 also involved lawsuits challenging rules issued by the Bush EPA that the Obama EPA chose to defend in court against environmental and public health group plaintiffs.
EPA’s Clean Air Act Win-Loss Record in the D.C. Circuit During the 8-Year Bush Administration
- Number of Clean Air Act cases in which environmental & public health groups prevailed against Bush EPA rules: 27. All of these cases involved attempts by the Bush administration to weaken clean air and public health protections by skirting Clean Air Act requirements.
- Number of Clean Air Act cases in which the Bush EPA prevailed entirely against lawsuits by environmental & public health groups: 11.
- Number of Clean Air Act cases in which industry parties prevailed against Bush EPA rules: 3. These cases involved claims by industry that rules were too stringent, unjustified or otherwise inconsistent with the Clean Air Act in some way. This low number is a function of two realities: (1) industry parties bothered to bring few lawsuits against the Bush EPA because that administration issued overwhelmingly industry-tilted rules, many of which were overturned following environmental group lawsuits (27 times); and (2) industry prevailed very infrequently – 3 times in 8 years – when they did challenge Bush EPA rules for being too stringent or somehow unlawful.
There are several striking conclusions to be drawn from these results:
- First, Chairman Whitfield and other Republican and industry critics are wildly off base in suggesting that the Obama administration EPA has lost many Clean Air Act cases brought by industry. Of the 20 Clean Air Act lawsuits in the D.C. Circuit that industry parties have mounted against Obama EPA rules, industry has prevailed in only 5 of those cases. Even taking into account the occasional Clean Air Act circuit court case outside the D.C. Circuit, such as the 5th Circuit’s decision in Texas v. EPA [pdf] in which industry and Texas prevailed against EPA, the number of industry court victories is low.
- Second, environmental and public health groups prevailed in 27 lawsuits challenging Bush EPA rules for violating the Clean Air Act and failing to uphold required public health safeguards. Even adjusting for the 8 years of two Bush administration terms, versus the 4 years of the Obama administration’s first term, environmental and public health groups prevailed nearly 3 times more often against Bush EPA rules than industry has prevailed against Obama EPA rules.
- Third, environmental and public health groups have prevailed in challenging Obama EPA clean air rules (for being too weak) the same number of times that industry parties have prevailed in challenging Obama EPA rules (for being too strong) – 5 times. This represents a far more balanced outcome in court than EPA’s congressional critics have acknowledged.
- Fourth, environmental and public health groups prevailed in challenging Bush EPA clean air rules (for being too weak) far more often (27 times) than industry parties prevailed in challenging Bush EPA rules for being too strong – 3 times. These results confirm the reality that the Bush administration engaged in rampant lawbreaking to weaken Clean Air Act requirements, but virtually never interpreted the Act so stringently that industry managed to overturn those rules in court.
- Fifth, the ratio of court victories to losses by environmental and public health groups challenging Bush EPA rules was 27 to 11, and the ratio of court victories to losses by industry groups challenging Obama EPA rules is currently 5 to 15.
- Sixth, the Obama EPA has prevailed entirely against industry legal challenges more often in 4 years (in 15 cases) than the Bush EPA managed against environmental group challenges in 8 years (in 11 cases).
So the next time you hear political rhetoric and charges tossed around about an out-of-control Obama EPA being rebuked in court for overreaching, remember these statistics. EPA's clean air standards have fared well in court against industry challengers, and that should continue to be the case so long as the administration upholds the law's promise of clean air and strong safeguards for all Americans.
(If any eagle-eyed readers spot errors in the results presented above, please let me know in the comments and I will correct mistakes. We did our best to convey accurate information, but of course any mistakes would be solely my own.)