EPA Use Research Articles

Chevron, State Farm and the EPA in the Courts of Appeals during the 1990s

This study updates an article published a decade ago by the same authors. It presents a systematic analysis of decisions in which EPA or its administrator was a named party in the federal courts of appeals during the 1990s. Relying on a data base of over 300 cases, the main topics of the study are judicial review of statutory interpretation and of EPA's use of science in its rulemaking proceedings. In both the statutory interpretation and scientific areas, one of our most significant findings is evidence that the federal courts have embraced what Tom Grey has termed the new formalism. As a feature of that judicial approach, courts evidence a reluctance to overrule agency decisions when doing so requires disagreeing with the agency on questions of degree or questions of trading off different policy considerations against one another. In the scientific area, this reluctance manifests itself in decisions declining to second-guess agency decisions about whether the data upon which EPA relied was inferior to data proposed by petitioners, whether EPA adequately assessed the weight of the evidence and whether models used by EPA were inferior to other models. In the statutory interpretation area, this reluctance manifests itself in declining to second guess the agency at Step Two of the analysis, i.e., when the question is whether or not the agency's resolution of conflicting policy considerations was reasonable. On the other hand, when attacks on EPA's reasoned decision making with respect to scientific issues could be characterized as pointing to a conclusion reached without any factual support, to a technical model unsuited to the issue, to a link in its reasoning process left completely unexplained, to internally inconsistent reasoning, or to a relevant factor left unanalyzed, those attacks were more successful. In each instance, identifying a categorical failure made judicial reversal more common. Likewise, cases in which statutory interpretation issues were made at Step One - i.e., the court found that the statutory meaning was clear - EPA was much more vulnerable to reversal than at Step Two. The article investigates why EPA and the courts may systematically and in good faith disagree over the location of the boundary between Steps One and Two of Chevron. Our study also provides the first comprehensive picture of the kinds of challenges brought under the reasoned decision making doctrine espoused by State Farm, and of the specific sorts of disagreements in statutory interpretation between the agency and the courts that produce judicial reversals at Step One. It provides evidence that overall, EPA is much more successful in it statutory interpretations than other studies have suggested, with the differences in results attributable to selection bias in other studies. Finally, examining an issue first raised by the Schuck and Elliott study of - and contrary to the conventional wisdom that courts are second-guessing agency interpretations more often in recent years - our study finds that the Chevron effect of increased deference to agency interpretation, has persisted into the 1990s, at least with regard to EPA.

Administrative Absurdity: Why the Judiciary Should Uphold EPA's Use of the Administrative Necessity and Absurd Results Doctrines within the Tailoring Rule

In Massachusetts v. EPA, the Supreme Court’s decision prompted the Environmental Protection Agency ('EPA' or 'Agency') to determine whether greenhouse gases ('GHG') endanger human health and welfare, and consequently whether the Clean Air Act ('CAA' or 'Act') should have the power to regulate GHG. Since that time, and in the absence of substantive climate legislation from the legislative branch, EPA issued a series of regulations culminating in the creation of a 'tailoring rule.' This rule outlines EPA’s authority to regulate only the largest GHG sources and exempt sources that emit less than the tailored applicability criteria. To achieve this goal, EPA relied on the administrative law principles of Chevron deference, 'absurd results,' and 'administrative necessity.' Since its issuance, a number of sources have challenged the validity of EPA’s actions.This Comment examines the efforts to curtail EPA’s regulation of GHG under the CAA and highlights some of the weaknesses in the approach currently taken by its challengers, notably a group of states and industry. This Comment begins by introducing the tailoring rule then proceeds by providing background on the legal doctrines that EPA has employed to justify the tailoring rule, specifically the doctrines of Chevron deference, 'absurd results,' and 'administrative necessity.' The Comment continues by addressing some of the legal challenges of the tailoring rule, with a focus on the arguments advanced by the state of Texas, and the strength and weaknesses of these challenges. This Comment concludes by arguing that under a permissibly broad reading of the Act, the Act permits EPA to modify the applicability criteria that determine which stationary sources and modification projects are subject to permitting requirements for GHG emissions under the CAA.

Conservative versus Mean Risk Assessments: Implications for Superfund Policies

This paper explores how a shift to more central estimates of risk would affect EPA decisions to remediate hazardous waste sites in the Superfund program. Analysis of 141 sites indicates that the EPA's use of conservative parameter values results in risk estimates that are 27 times greater than those based on mean values. Over 40% of sites requiring remediation would shift into the discretionary cleanup range if mean parameters were used. Though this paper examines the effect of using mean parameters for contaminant concentrations, exposure duration, and ingestion rates, additional adjustments for other conservative parameters might increase this effect.

EPA's use rule orders mass accounting

The Environmental Protection Agency has followed up on its pledge to force the chemical industry and other manufacturers to supply data on the chemicals they use during operations: It has issued a proposed regulation that would add chemical use reporting to the existing Toxics Release Inventory (TBI). The concept that a community has a right to know everything about the chemicals that are used, transported, manufactured, stored, or emitted into its environment has long been a touchstone for many environmental activist organizations. When the Superfund law was reauthorized in 1986, one section was labeled the Emergency Planning & Community Right-to- Know Act, and it created a range of reporting requirements for chemical companies using any of more than 300 listed chemicals. Most widely known of these requirements is TRI, the annual listing of toxic chemicals that are released into the air, land, or water from reporting facilities. But the Clinton Administration, in the belief that ...