Okay, maybe I was wrong. Just because the Supreme Court in Massachusetts v. EPA legislated from the bench in order to empower EPA to legislate from the bureau does not necessarily mean that lower courts will tolerate similar breaches of the separation of powers.
Yesterday (May 26, 2011), in Avenal Power Center v. EPA, District of Columbia Judge Richard Leon mockingly rejected EPA’s arguments for attempting to amend the Clean Air Act to suit the agency’s administrative convenience. Although not mentioned by him, Judge Leon’s reasoning may strengthen legal challenges to EPA’s greenhouse gas Tailoring Rule.
A quick overview of the case.
A company called Avenal Power Center seeks to build a state of the art 600 megawatt natural gas-fired power plant in California’s San Joaquin Valley. In February 2008, Avenal submitted to EPA an application for a Prevention of Significant Deterioration (PSD) preconstruction permit. Section 165(c) of the Clean Air Act (CAA) requires EPA to grant or deny a PSD permit application within one year. Almost two years later, EPA “still had no final or foreseeable resolution to its application.” On March 9, 2010, Avenal petitioned the District Court “seeking judicial relief to deal with EPA’s continued violation of Congress’s one-year deadline under Section 165(c) of the CAA.”
On February 4, 2011, the head of EPA’s Air Office announced that the agency would issue a final permit decision by May 27, 2011. “Unfortunately,” writes Judge Leon, “that was not to be!” He continues: “As plaintiff appropriately points out, EPA’s promise of a ‘final permit decision’ under 40 C.F.R. § 124.15 was inherently disingenuous.” In reality, all EPA was promising to do was render an “interim decision” that can be appealed to EPA’s Environmental Appeal’s Board (EAB) — and then overturned. As EPA concedes, EAB review “could take anywhere from six to eight months, or longer, to complete.”
Here’s where the fun starts.
EPA contends that its appealable interim decision “is sufficient to satisfy the CAA’s one year deadline” (even though already two years overdue), and that, in any event, the District Court “lacks jurisdiction” to require a final determination. Why? Because EPA has authority to delegate decisions to the EAB, and EAB reviews take, well, as long as they take.
“For the following reasons,” writes Judge Leon, “I disagree with defendants’ oh so clever, but unsupportable, position.”
The EAB exists to serve EPA’s administrative convenience. However, Congress did not create the EAB via the CAA. Rather, EPA created the EAB via a 1992 rulemaking. “Unfortunately,” the Judge observes, “when the Administrator created that process she failed to build into it the temporal requirement that the EAB’s decision must be completed within the CAA’s statutorily mandated one-year period. . . .As a result, the EPA put in place a review process that can be and has, in this case rendered meaningless this Congressional one-year mandate.”
Judge Leon continues:
Unfazed, the EPA argues, in effect, that this regulatory process trumps Congress’s mandate and relieves the Administrator of complying with it until the EAB renders the Agency’s final decision. . . .In essence, the EPA contends that Congress’s statutory mandate is subservient to EPA’s regulatory process, and as such this Court has no authority to require the Administrator to comply with this statutory requirement. How absurd!
The Judge gets constitutional:
It is axiomatic that an act of Congress that is patently clear and unambiguous — such as this requirement in the CAA — cannot be overriden by a regulatory process created for the convenience of an Administrator, no matter how much notice and comment preceded the creation. . . .Administrators of regulatory agencies derive their power from Congress’s statutory enactments — not from their own discretionary regulatory pronouncements that are drafted for their assistance and convenience. . . .To the extent that a regulatory process frustrates or renders meaningless a Congressional statutory mandate, it must yield to Congress’s will.
Even tarter and tastier are comments Judge Leon imparts in a footnote:
The EPA has labored mightily to convince this Court that the temporal requirement enacted by Congress is somehow ambiguous and, therefore, this Court should defer to its interpretation under Chevron. . . .Horsefeathers! The EPA’s self-serving misinterpretation of Congress’s mandate is too clever by half and an obvious effort to protect its regulatory process at the expense of Congress’s clear intention. Put simply, that dog won’t hunt.
The decision may have implications for ongoing litigation on EPA’s greenhouse gas (GHG) regulations, particularly its Tailoring Rule.
When EPA’s GHG motor vehicle emission standards took effect on Jan. 2, 2011, “major” stationary sources of carbon dioxide (CO2) became “subject to regulation” under the PSD preconstruction permitting program and the Title V operating permits program. The problem, as is well known, is that literally millions of non-industrial facilities — office buildings, apartment complexes, big box stores, hospitals, schools, large houses of worship, Dunkin’ Donut shops — emit enough CO2 (25o tons per year, 100 tons per year) to qualify as major sources under PSD and Title V.
As EPA admits, regulating GHGs via the CAA leads to “absurd results” – policies that conflict with congressional intent. EPA and its state counterparts would have to process an estimated 81,000 PSD preconstruction permit applications per year (instead of 280) and 6.1 million Title V operating permits per year (instead of 15,000). The permitting programs would crash under their own weight, crippling both environmental enforcement and economic development.
EPA’s solution is to “tailor” the PSD and Title V programs to exempt all but the largest industrial CO2 emitters (power plants, refineries, cement kilns, steel plants, pulp and paper mills). “Tailoring,” however, is just bureaucrat-speak for “amending.” The Tailoring Rule substitutes one absurd result for another, because administrative agencies have no power to amend statutes.
To borrow Judge Leon’s words, the PSD and Title V numerical definitions of major source are “patently clear and unambiguous.” If EPA’s claim that it may regulate around the statute’s one-year review deadline is “absurd,” why not its claim that it may regulate around the PSD and Title V major source thresholds?