On Tuesday, Judge John Koeltl ordered EPA to issue a final rule addressing its obligations under the Good Neighbor provisions of the Clean Air Act by no later than March 15, 2021. Two aspects of the decision are worth note.
The big issue in the case, once the Judge disposed of EPA's jurisdictional arguments, was whether it is impossible for EPA to issue a final rule by the plaintiffs' suggested date. EPA argued that compliance by March 15, 2021 was legally "impossible." Judge Koeltl first noted that heavy burden on an agency in making an impossibility argument. He then provided the coup de grace:
That burden is especially heavy where 'the agency has failed to demonstrate any diligence whatever in discharging its statutory duty to promulgate regulations and has in fact ignored that duty for several years.
In other words, an agency cannot ignore its statutory obligations for years and thus create a condition of impossibility through its dereliction of its statutory duties. Indeed, EPA's conduct comes very near to Leo Rosten's classic definition of chutzpah in "The Joys of Yiddish":
that quality enshrined in a man who, having killed his mother and father, throws himself on the mercy of the court because he is an orphan.
The second important aspect of the case is EPA's effort, chutzpah aside, to argue that uncertainty regarding emissions from sources other than electric generating units justifies EPA's insistence that it needs more time before it can regulate. As I noted in connection with a previous iteration of this dispute, it is EPA's job – its statutory obligation – to regulate under uncertainty. If it waited until it could eliminate uncertainty before regulating, it would never do anything – which may in fact be this administration's ultimate objective, of course.
Originally published by Foley Hoag, July 2020
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