Bad Week in Courts for EPA Policy

In a ruling published last October, U.S. District Court Judge John Bailey sided with Murray Energy against the Environmental Protection Agency in holding that the Clean Air Act requires the agency to perform continuing evaluations of job losses due to federal regulations.

On June 29th, the U.S. Court of Appeals for the Fourth Circuit issued a disappointing opinion that reverses Judge Bailey’s decision. According to the three-judge circuit panel, Clean Air Act § 321(a) does not create a mandatory duty when it states that “The [EPA] Administrator shall conduct continuing evaluations of potential loss or shifts of employment which may result from” air quality regulations. The panel focused on the word “continuing”; the judges reasoned that because the EPA’s statutory responsibility to assess job losses is “continuing,” it is not a discrete act, and, as such, it cannot be compelled by the courts.

I’m disappointed by the court’s reasoning. In particular, I fail to see how the verb “shall” cannot create a non-discretionary duty.

But I’m more disappointed with the Trump administration. Indeed, I have no idea what the administration is thinking. These jobs analyses are an opportunity. They provide an ideal vehicle to establish an administrative record regarding the economic impact of the agency’s rules. This is precisely the sort of analysis the EPA to date has eschewed.

If the Trump administration had folded the Obama-era appeal of Judge Bailey’s decision, then the only legal precedent regarding Clean Air Act § 321(a) would have established that the jobs analysis was mandatory. This perhaps would have compelled a future progressive president to conduct these analyses, which is good policy. Alas, the Trump administration instead continued with the Obama administration’s legal fight against Judge Bailey’s decision and ultimately killed it. Again, I’ve no idea what the current administration is thinking on this.

In other dispiriting legal news, February 5th, 2018 has been set as the trial date before U.S. District Court Judge Ann Aiken for a lawsuit brought by 21 children arguing that the U.S. government has infringed their constitutional right to climate change mitigation policies.