Power Engineering

Time To Reconsider EPA’s “Citizens’ Suit” Regime

By Richard G. Stoll, Partner, Foley & Lardner LLP

It’s hard to keep up with the barrage of new EPA rules. You’ve probably read about EPA’s new multi-billion dollar rules for electric utilities such as the Mercury and Air Toxics Standards (MATS) and greenhouse gas (GHG) New Source Performance Standards (NSPS), as well as EPA’s new (June 2012) proposal for tighter particulate matter (PM) air quality standards. And that’s just scratching the surface.

You may have also seen trade press headlines like: “Activists Sue for Coal Ash Rule Deadline;” “Activists Eye Lead NAAQS Lawsuit;” “Suits to Enforce 1997 PM NAAQS Amid Uncertainty Over New Limit.”

Is there a link between such lawsuits and EPA’s rule barrage? Absolutely. EPA was forced to issue all three of the rulemakings mentioned above, for instance, under court-ordered deadlines. This is true of hundreds of EPA rules over the last few years.

As long as “citizens’” groups stand ready, willing, and able to sue, this rule barrage is inevitable under the laws Congress has enacted for EPA. Starting with the Clean Air Act in 1970 and following up with other EPA statutes, Congress has mandated that EPA issue a multitude of rules by specified deadlines. And Congress has included provisions allowing citizens suits in federal court to enforce these deadlines.

With its limited resources and such a plethora of deadlines for highly complex rules, EPA is almost always late. When EPA misses a deadline, activist groups are thus gifted by Congress with a slam-dunk case for a court order specifying a new deadline. Congress even provides attorneys’ fees for such plaintiffs from the U.S. Treasury.

When EPA believes it will be unable to comply with a judicial deadline, it is forced to seek an extension. The degree to which the court might acquiesce is often dependent upon whether the plaintiffs agree. As a result, citizens’ groups often have great bargaining power over the timing – and sometimes even the direction – of EPA’s rulemaking.

Congress’ citizens’ suit regime for EPA has no parallel in other federal agencies. And it produces several unfortunate results. First, EPA rules are usually lengthy and complex, requiring input from different types of professionals on EPA’s staff. When they are forced to hurry, the result can be a mess.

A good example is the final oil and gas NSPS EPA’s Administrator signed this April under a citizen suit deadline. When regulated parties began reading the 500+ page document, they became seriously confused. They found dozens of contradictory and inconsistent provisions, and key definitions that were indecipherable. Even worse, last year EPA was forced under court order to issue final “Boiler MACT” and related rules. EPA asked the judge for 15 additional months to come up with defensible rules, but the Sierra Club objected. The judge sided with the Sierra Club.

The resulting rushed rules had so many fundamental problems that EPA had to start a “reconsideration” process, stay the effect of the rules, and go back to the drawing board with a new round of rulemaking. When EPA has to clean up messes with new rounds of rulemaking, everyone’s resources are wasted.

Second, simply as a matter of good government, you would think EPA’s management should be the ones to decide the order and pace of new rules in carrying out their responsibility to protect health and the environment. But under the regime Congress has established, the order and pace is often determined by activists groups choosing which of the multitude of rule deadlines they deem most important.

Finally, judicial deadlines can compromise the “inter-agency review” process managed by the President’s Office of Information and Regulatory Affairs (OIRA). Under a key Executive Order issued by President Clinton (and recently enhanced by President Obama), OIRA is charged with assuring that all Executive Branch agencies’ major rules are analyzed and issued in consideration of costs, benefits and other societal impacts, and that such rules must adopt the least burdensome approach allowed under law.

During this process, EPA’s draft rules are sometimes revised to better balance economic and other societal concerns. Under the Executive Orders, the inter-agency review period is 90 days, and this period is often extended when a careful review is needed. With court-ordered deadlines, however, this process can be significantly truncated, and the valuable balancing that might be achieved can be jeopardized.

Again, Congress has saddled no other federal agency with anything comparable to the rulemaking-by-judicial-deadline regime imposed on EPA. Now that we have 40 years’ worth of EPA rules on the books, it may be a good time for Congress to reconsider.

Author: Stoll practices at Foley & Lardner’s DC office. He wrote “Effective EPA Advocacy,” published in 2011.

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