Courts Rein in EPA Over-reach

A series of recent federal court rulings reined in the federal Environmental Protection Agency’s out-of-control regulatory rampage on air and water quality regulations.  One struck down an EPA practice of using guidelines, instead of actual regulations to set requirements for industry.  The other said EPA over-stepped it role in trying to regulate “cross state line” emissions without Congressional authority.

EPA has been regulating beyond its statutory limits according to the two court rulings.  First, a federal district court decision blocked the EPA from regulating Clean Water Act (CWA) Section 404 “dredge and fill” discharges (concerning surface mining activities) through “guidance,” calling instead for notice-and-comment rulemaking under the Administrative Procedures Act (APA). 

In the second case, the U.S. Court of Appeals for the D.C. Circuit ruled 2-1 that the agency’s Cross-State Air Pollution Rule, meant to curb harmful pollutants from drifting downwind and harming the air quality in neighboring states, went too far and exceeded the EPA’s “statutory authority.”  In its ruling, the majority wrote that it was not passing wisdom or judgment on the merits of the EPA’s rule, but it made clear that it must stay within the scope of the power that Congress gave the agency.

In an interesting side-bar—there is a virtual news blackout on court rulings that go against the EPA.  Ask Google, which told us “Your search – national mining association v. lisa jackson – did not match any news results.”  The Cross-State Air Pollution Rule case generated 860 stories, but to put it in perspective, a one-day story about movie star Russell Crowe being rescued when he got lost paddling across a bay in Long Island generated “about 4,690 results.”

EPA can’t regulate through guidance

The National Mining Association (NMA), along with the states of West Virginia and Kentucky, among others, objected to EPA’s binding application of the “guidance”—namely the effect it was having on the Section 404 permitting process—as well as the fact that the “guidance” document infringed upon states’ roles in CWA permitting and effectively set de facto water quality standards.

Throughout the NMA litigation, EPA continually stated the guidance document was not binding, did not constitute “final” agency action and was therefore un-reviewable under the APA. The APA generally requires agencies to provide public notice and seek comment prior to enacting new regulations.
The district court found, however, that EPA took a “comply-or-else attitude” with respect to the guidance, and that “the record before the Court…confirms the plaintiffs’ allegations that the Final Guidance is being implemented as binding and having a practical effect on the [CWA Section 404] permitting process for new Appalachian surface coal mining projects.” As such, the district court held that the guidance was reviewable under the APA.
The decision also reaffirms the important role of states in permitting and sets clear limits on EPA’s role under the CWA and related statutes. NMA argued that several sections of the guidance document prohibited actions relating to mine design and other upland activities that are outside the scope of EPA’s authority and that are effectively dealt with under the Surface Mining Control and Reclamation Act (SMCRA). 

“Our limited but important role is to independently ensure that the agency stays within the boundaries Congress has set. EPA did not do so here,” the court ruling said.

The order of the district court expressly sets aside the guidance as “unlawful agency action.” Therefore, EPA can no longer implement the guidance document. EPA has until the end of September to appeal the district court decision decision.

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