On Oct. 18, Joe Goffman participated in the Case Western Reserve University Law Symposium, EPA Turns 50. Joe discussed the dynamic nature of the Clean Air Act and how the current administration is diverging from precedent and re-interpreting the Act to achieve the administration’s goal of deconstructing the administrative state.
Punishing Success: Why is EPA Ground Zero in “Deconstructing the Administrative State”?
Thank you very much for the opportunity to participate in the symposium. It’s quite a privilege to be included among the presenters on today’s agenda and to speak to a gathering like this on the occasion of EPA’s imminent 50th Anniversary.
I am going to focus on the Clean Air Act for a couple of reasons. First it gives me an opportunity to show Clean Air Act nerds’ favorite graph which provides strong circumstantial evidence that the Act and the Environmental Protection Agency can justifiably claim significant success carrying out their respective purpose and mission.
Second it is on the terrain of the Clean Air Act and EPA’s implementation of it that the current Administration is conducting one of its more ambitious campaigns to, in the words of Steve Bannon spoken in early 2017, deconstruct the administrative state.
What I am going to present is a view of the Clean Air Act as a toolbox Congress created for the EPA. For most of its history, EPA operated from the premise that part of its job was to interpret the Act by assuming that Congress had a specific, sophisticated view of the multi-faceted problem posed by air pollution and of the best, most durable ways to find solutions to the problem. Thus, when EPA reached into the toolbox it did so assuming that the tools it found there were fitted for the task or could be fitted by the agency for the task, whether that task was addressing local air quality, the long-distance transport of pollution, toxic air emissions, or climate change.
Current EPA management, in contrast, seems to operate from a different premise. Examine EPA’s most prominent recent Clean Air Act actions and you will find that it sees the same tools as inflexible and ill-fitted for the same tasks. In fact, it would be easy to forgive observers for suspecting that the EPA is determined to devise new interpretations of oft-used Clean Air Act provisions to render those tools ill-fitted, even useless for the tasks the EPA faces.
The watchword of the Clean Air Act is progress, progress of exactly the sort that characterizes the science enterprise and technology. Coupled with the progressivism of science and technology is a permanent urgency about tackling air pollution, an urgency created by the Act’s mandate that EPA stay on permanent task of continuing to find out what threats air pollution poses and of continuing to find the newest technologies and strategies for reducing it. And then put in place over time an ongoing succession of rules and standards reflecting the latest science and the latest technology.
Those mandates are found in the demand that every 5 years EPA examine the latest science to determine whether National Ambient Air Quality Standards need to be revised, in the demand that every 8 years EPA determine whether advances in pollution control technology warrant tightening emission standards for new and modified sources and in the demand that EPA and the states permit new sources of pollution to be built only if they install and operate state-of-the-art pollution control equipment.
Meanwhile, the architecture of the Act reflects an almost fanatical determination on the part of Congress that the problem of air pollution be attacked from every conceivable angle. Thus, the Act is designed like a net or web creating interconnecting mandates and authorities so that the application of one aimed at one set of pollution sources triggers the application of other authorities aimed at other sets of pollution sources. Lest EPA not get or stay on task, third parties can bring citizen suits to enforce EPA compliance.
The lexicon of the Clean Air Act features maximalist adjectives – best system of emission reduction, maximum achievable control technology, lowest achievable emission rate, best available control technology.
If I had to reduce the Clean Air Act to one or two sentences they would be something like: “Air pollution must be continually reduced. EPA shall do what it takes to get the job done.”
If you doubt the first sentence, then in a moment I will show you the statutory language that pretty much says that. If you doubt the second sentence then consider the Cross State Air Pollution Rule, or CSAPR (the Brett Favre of acronyms). That 2011 rule, which was ultimately upheld by the Supreme Court, relied on a provision that says little more than – that in the absence of state action – EPA shall devise a federal plan to reduce pollution that “significantly contributes” to downwind nonattainment and leaves it to EPA to determine what “significantly contributes” means. On the strength of that provision, EPA followed a complex process to design a multi-state, multi-pollutant program featuring state-by-state emissions budgets implemented through regional emissions trading. CSAPR, an EPA regulation based on barely a dozen words in the Act, compares in scope and complexity to the acid rain trading program that Congress itself enacted in title IV of the 1990 Clean Air Act amendments
In creating the EPA, the Nixon Administration included a stark statement of the breadth of the problem pollution posed and the breadth of the solution-finding it expected the new agency to pursue:
“Despite its complexity, for pollution control purposes the environment must be perceived as a single, interrelated system.”
Congress added to the equation a sense of permanent urgency about curbing air pollution by casting science and technology – which are intrinsically and relentlessly “progressive” – in roles central to EPA’s obligations and authorities, that is, to its power.
For the EPA to be on task, as Congress directed, is to be continually engaging with the relentless advance of science and the equally relentless advance of technology.
The courts, meanwhile, on balance sent a pretty clear message to EPA.
Both the Supreme Court in Mass v EPA and the DC Circuit took pains to make sure EPA got the messages Congress was sending. Toxics air pollution is an urgent threat; Congress meant its maximalist language:
EPA’s discretion does not extend to defining several different ‘best’ metrics
Even more forcefully, Justice Stevens distilled the relentless “progressivism” of science and technology. And even more important for EPA’s purposes, the urgency of keeping up with the progress. Failing to keep up courted the existential threat of obsolescence. It’s right there in Stevens’ language:
While the Congress that drafted §202(a)(1) might not have appreciated the possibility that burning fossil fuels could lead to global warming, they did understand that without regulatory flexibility, changing circumstances and scientific developments would soon render the Clean Air Act obsolete. The broad language of § 202(a)(1) reflects an intentional effort to confer the flexibility necessary to forestall such obsolescence.
Congress put equal care into fashioning tools fit for the task of reducing pollution. The NAAQS is just the portal into an elaborate statutory architecture designed to attack air pollution in every conceivable, appropriate way – encompassing state-federal structures, and programs tailored to address pollutants and sources from national technology-based standards for entire categories of sources to individual source permitting. The key components, like New Source Performance Standards and the Best Available Control Technology, of individual source permitting show how thoroughgoing is the nexus between innovation and the air quality goals of the Act.
Indeed, mechanisms for driving clean technology innovation abound. Congress harnessed the leadership of California in its continual promotion of auto pollution control innovation, and by allowing states to opt in, Congress itself installed a mechanism for promoting the dissemination of the technology.
Congress recognized that California could serve as a pioneer and a laboratory for the nation in setting new motor vehicle emission standards. Congress intentionally structured this waiver provision to restrict and limit EPA’s ability to deny a waiver
Slides 9 and 10
The Act has a highly elaborated architecture. It’s built to be comprehensive. No source of a regulated pollutant can be left uncontrolled and no category of sources can be left uncontrolled. That same architecture is redundant by design, with fail-safes and back stops, notably in the form of citizen suits empowering individual citizens
Why? Because air pollution is an urgent problem that must be attacked from every angle, all 360 degrees.
Here we get to CSAPR, the regional cap and trade program that I described at the beginning. The statutory language is meager, but the design steps EPA followed were elaborate – and, again, have been upheld by the Supreme Court and the DC Circuit.
Note the multiple, intricate design steps EPA had to take to create CSAPR
Note that it was a conservative Republican administration under George W. Bush that pioneered virtually the same elaborate program design process and design in the Clean Air Interstate Rule. The Clean Air Act summoned bipartisanship in the fundamentals of its interpretation.
Like every other one of EPA’s Clean Air Act rules, the Clean Power Plan’s foundation was statutory text that featured Congress’ and the Act’s characteristic maximalist vocabulary, in this case, BEST system of emissions reduction. I think you can see why in 2015, for an agency that had been given lesson after lesson by the DC Circuit and the Supreme Court – as in, again, the decision upholding CSAPR – in what its job was, the Clean Power Plan was no more an outlier than CSAPR itself or, for that matter, the Mercury and Air Toxics Standards.
The task is urgent, and the tools are powerful, plentiful and intended to be fitted by EPA to the task.
The EPA’s Repeal of the Clean Power Plan provides a crystalizing example of the EPA’s larger game plan. Indeed, the agency shows its cards:
confers considerable discretion on the EPA to interpret the statute and make reasonable policy choices
But there’s a conflict:
unambiguously limits the BSER to those systems that can be put into operation at a building, structure, facility, or installation
This despite the fact that EPA twice read the same statutory language – the Clean Air Mercury Rule as well as the CPP — without detecting the conflict, and instead harmonizing the provisions of section 111 to de-conflict them.
Again, the rule now produces virtually no reductions. No longer, according to this EPA, are the Clean Air Act tools at all fitted to the task of making serious reductions in CO2 emissions from power plants.
And so it goes.
The proposed withdrawal of the appropriate and necessary finding for MATS:
Bootstraps ad hoc application of cost-benefit analysis to subvert Congressional intent by creating option *not* to regulate power plant mercury emissions
As discussed, the Repeal of the Clean Power Plan:
Writes rulemaking record out of consideration of “best system of emission reduction” to attenuate authority to address power plant carbon dioxide emissions.
The proposed rollback of the 2016 oil and gas methane rules:
Compartmentalizes “source category”/operations to attenuate EPA’s ability to regulate oil/gas sector emissions. Attenuates link between regulatory authority and air pollution science.
The denial of the CA Waiver for its zero-emitting vehicle program on the books for nearly 30 years as a major air quality strategy:
Yields air quality-related regulatory authority to another agency and prohibits EPA from regulating greenhouse gas emissions from automobiles – one of the largest sources of climate pollution – and defeats the technology innovation imperative.
It took 45 years of reading progressivism, urgency and power into the Clean Air Act to produce this. We will miss it if it goes.
EELP is tracking EPA’s efforts to undermine the agency’s core mission to protect public health and the environment. For more information, visit EELP’s Mission Tracker.