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INSIGHT: EPA General Counsel—Judicial Wins Reduce Regulatory Burdens

Aug. 10, 2020, 8:00 AM

To achieve the goal of reducing unnecessary and burdensome regulations that threaten economic growth and hamper innovation, the Environmental Protection Agency has prioritized deregulatory actions to provide more certainty, clarity, and stability to the regulated community.

The EPA has achieved this goal while continuing to fulfill the agency’s mission of protecting human health and the environment, by reducing air, water, and soil pollution. In fact, air pollution alone has dropped 7% under this administration, for a 77% total reduction since the Clean Air Act was adopted.

The EPA has focused on returning the agency to proper legal constraints in actions like the Affordable Clean Energy Rule, which corrected prior violations of the statutory limits of the EPA’s authority. These accomplishments, like many worthwhile endeavors, have not been without controversy.

Our major actions have certainly been the subject of litigation. And like prior administrations, our defense of these actions protect the agency’s fundamental discretion to allow the EPA to make sound environmental regulatory decisions on behalf of the American people.

EPA Is Winning in the Courts

These efforts are succeeding in the courts. Contrary to certain media reports, the EPA’s judicial track record shows that the agency is winning a substantial number of cases.

The EPA has prevailed in approximately two-thirds of the cases decided over the last three years that challenge significant environmental actions taken during this administration. The administration has successfully defended many of the EPA’s most important actions already, and we expect to continue that success this year.

While court victories are only one measure of success, it is important to set the record straight on this count. The EPA’s recent judicial record is consistent with historic trends, making it an indicator that courts are generally respecting the agency’s primary authority to make sound environmental policy judgments, balancing the many factors the laws require us to balance.

This is much more nuanced work than binary characterization often used to describe our actions. The EPA’s exceptional and talented career attorneys are a major part of these efforts. Our civil servants have worked to adhere to the rule of law, provide certainty to the regulated community, and ensure a healthier environment for all Americans. The EPA’s recent victories in the courts are also due to the exceptional representation by the Department of Justice.

Courts across the country are upholding the EPA’s efforts. Recently, for example, a federal court rejected an initial challenge to the Navigable Waters Protection Rule (NWPR), our new definition of the waters of the U.S., denying an attempt by 17 states to stop implementation of the NWPR nationwide. Clarity and certainty over the scope of federal waters are starting to take hold.

In a significant Clean Air Act case, the D.C. Circuit dismissed a challenge to a 2018 EPA guidance memorandum that withdrew a 1995 policy for classifying major sources of hazardous air pollutants. Under the 1995 policy, sources that had cut their hazardous air pollutant emissions nevertheless remained subject to major source requirements.

The EPA also prevailed in another Clean Air Act case that involved a challenge to the EPA’s renewable fuel standards. The court denied the challengers’ petitions for review, upholding the EPA’s renewable fuel standards at the level the agency determined appropriate.

The EPA has also received recent favorable rulings under important Comprehensive Environmental Response, Compensation, and Liability Act (CERCLA) and the Resource Conservation and Recovery Act (RCRA) cases.

The victory under CERCLA affirmed our authority to avoid unnecessary additional financial burdens on the hardrock mining industry. In the RCRA case, a federal court denied petitions for review that challenged an EPA rule that promotes recycling. The court concluded that the EPA provided a reasoned explanation for applying different standards to materials that are not yet part of the waste disposal problem where they meet certain conditions.

These are just a few examples of the recent victories that have helped the Trump administration achieve its goal of common-sense regulatory reform. The EPA has accomplished much over the last three-and-a-half years in furtherance of its core mission to protect human health and the environment.

The agency’s victories in court affirm that it is adhering to the rule of law and acting within the limits of its statutory authority. We look forward to continuing to build on these accomplishments as we work to craft a balanced, effective, and environmentally sound regulatory approach.

This column does not necessarily reflect the opinion of The Bureau of National Affairs, Inc. or its owners.

Author Information

Matthew Z. Leopold is general counsel at the U.S. Environmental Protection Agency.

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