The EPA: “Unambiguously Correct”

Andrew Rudalevige Jun 27 '12

Not many people say nice things about the Environmental Protection Agency, so it seemed only charitable to pass along the unanimous ruling by the US Circuit Court of Appeals for the District of Columbia affirming EPA’s interpretation of the Clean Air Act. The text of the opinion, in Coalition for Responsible Regulation et al v EPA, is here.)  The ruling upholds EPA’s review and use of the scientific findings that carbon dioxide and other greenhouse gases harm the public health.

You may recall that back in 2006, Massachusetts (under Governor Mitt Romney) led 14 other states in suing the EPA, arguing that it had authority under the Clean Air Act to regulate tailpipe emissions – and should do so. (Massachusetts et al v EPA is here.) The Supreme Court agreed (in the usual snappy, or at least snappish, 5-4 decision).  It sent the case back to the EPA to determine if such emissions caused harm (in which case, it would have to regulate them, under the law.)

The EPA decided they did, in fact, cause harm. But in an intriguing codicil to the “administrative presidency” literature, the Bush administration refused to accept that finding, going so far as never to open an email attachment containing the report. Thus the report was never final, and the status quo ante remained in place until the Obama administration took over.

Obama eagerly opened the email and, given Congress’s failure to reach agreement on legislation in this area, EPA’s efforts have been the only game in town, albeit suspended by this and other suits. The usual suspects hailed and denounced the ruling, but keep in mind the key question was not whether more regulation was a good idea (though under the current administration “more” will presumably be the upshot), but on “how science works”: on whether agencies can use their technical expertise to make decisions and on the level of judicial deference those decisions engender.  In that sense it is a very non-“activist” ruling.