On May 16, in Texas v. EPA, the 5th Circuit Court of Appeals rejected EPA's nonattainment designation for two counties in Texas. What I find most interesting about the case is the reaction to it. Inside EPA (subscription required) states that the decision is:
Notable in that it offers EPA less deference on technical
matters, following a key Supreme Court ruling limitation statutory
interpretation deference.
However, the Inside EPA story, while quoting the relevant language from the decision, seems to have ignored or misunderstood the basis for the court's decision, which does not turn on the decision in Loper-Bright. Indeed, as Inside EPA noted, the Court clearly stated that:
It is not possible to interpret Loper Bright as
discarding deferential review of agency factfinding. The
Supreme Court relied extensively on the provisions of the APA in
its Loper Bright opinion. The Court distinguished a court's
deferential standard for reviewing findings of fact under the APA
from the absence of deference for legal conclusions, stating that
the APA prescribes no deferential standard for courts to employ in
answering those legal questions. That omission is telling, because
Section 706 does mandate that judicial review of agency
policymaking and factfinding be deferential.
The Court's rationale for rejecting EPA's nonattainment decision was really a plain vanilla application of the APA. Here's the essence:
"EPA relied solely on Sierra Club's modeling that had conceded limitations and that was further called into question by conflicting monitoring data. Given this, EPA should have designated the areas as unclassifiable or rationally explained why an alternative designation was clear and not debatable. EPA did neither. Instead, EPA seems to have forced a result on sparse and suspect evidence."
The Sierra Club modelling relied on by EPA predicted higher
concentrations of sulfur dioxide than were detected at a monitoring
station. EPA's attempt to explain away this discrepancy was a
non sequitur; EPA said that the monitor was not in a location
likely to be affected by the power plant at issue in the case.
However, the question wasn't whether the monitoring station was
near enough to the power plant to accurately predict nonattainment.
Instead, the question was simply whether the Sierra Club model
could be relied on where it predicted concentrations that did not
match actual monitoring data. Verifying that a model fits available
data is always the first step in determining the model's
reliability, and EPA ignored data showing that the model was not
reliable.
As I noted in a prior post, whatever one thinks of the
decision in Loper Bright, it does not mark the end of
judicial deference to agency technical judgments. That deference
was confirmed in Loper Bright and is not undermined by
Texas v. EPA.
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