//  5/20/19  //  Commentary

Last week, a federal judge in California directed the Environmental Protection Agency to implement regulations aimed at reducing emissions of greenhouse gases and other health-harming air pollutants from landfills. [Disclaimer: I represented the Environmental Defense Fund, intervenor-plaintiff, in the case.] There has been some attention to the implications of the court’s standing analysis—applying the Supreme Court’s Massachusetts v. EPA opinion to conclude that a group of State plaintiffs had standing to sue for harms caused by greenhouse gases. That aspect of the court’s decision is certainly important, but what I find even more interesting about the case is the lengths to which the current EPA went to avoid implementing this important (but relatively low profile) regulation, and the effect that had on the court’s ruling.

First, some background. In 2016, EPA updated its long-outdated standards limiting pollution from both new and existing landfills. EPA is required to review these regulations every 8 years and had fallen over a decade behind its mandate under the Clean Air Act to keep the standards current. The update was important, reducing hundreds of thousands of tons of dangerous pollutants from the third largest source of the powerful greenhouse gas methane. Yet it was comparatively modest, with an expected annual net cost of $54 million. Under EPA regulations, states were required to submit plans describing how they would implement the update by May 30, 2017; EPA was then required to review and approve or disapprove those plans by September 30, 2017; and EPA was required to promulgate a federal plan for any state without an approvable plan by November 30, 2017.

Instead of implementing the regulation, however, in 2017, EPA embarked on a 2-year campaign (taking or initiating at least five separate actions) to avoid the required steps. First, back in the spring of 2017, one of the inaugural actions taken by then EPA Administrator Scott Pruitt was a notice that purported to stay the rule for 90 days under a narrow provision of the Clean Air Act that permits the agency to administratively stay a final rule for up to 90 days when certain conditions are met. Those conditions probably weren’t met, but 90 days passed before the lawsuit challenging the stay could be decided (and in any event, EPA later admitted that because no deadline fell during the 90-day period, the stay had no effect).

Next, in July 2017, EPA sent to the Office of Management and Budget a draft proposed rule to stay the regulation for much longer. That proposal was never issued for comment, probably because the Administration was beginning to realize it could not ignore statutory constraints by fiat. So the agency decided to change tack. Rather than take an affirmative action to suspend the standards, in October 2017, EPA decided it just wouldn’t implement them. And not quietly—EPA issued an official and public press statement, announcing that states that fail to submit plans “are not subject to sanctions,” and that for its part, the agency did “not plan to prioritize review of” state plans, nor was it “working to issue a Federal Plan for states that fail to submit a state plan.”

That plan bought the agency some time. Under the Clean Air Act, however, citizens may sue EPA for failing to perform its nondiscretionary duties, and a group of eight states did just that. EPA conceded liability in the case, but it had not come close to exhausting its toolbox for delay. Three days before a court hearing on EPA’s only statutory defense, Administrator Wheeler signed a “very rushed” proposed rulemaking to retroactively extend the deadlines EPA had missed—by up to three years. At the hearing, the Department of Justice announced EPA’s intent to seek a stay of the States’ litigation pending the conclusion of its rulemaking.

After full briefing on this request (once again buying the agency time), the district court denied the stay motion. This was followed by two subsequent additional unsuccessful attempts by EPA to stay the litigation due to the government shutdown, including one that argued summary judgment briefing should proceed in two separate phases—liability and remedy—despite the fact that liability was conceded. EPA’s final (at least for now) attempt to forestall its obligations was by challenging the standing of eight sovereign states and the Environmental Defense Fund, an argument that the judge suggested at oral argument would require him to “pioneer a theory I don’t know that any court has ever accepted.”

EPA’s intransigence did not go unnoticed in the judge’s opinion directing EPA to implement the landfills regulation. While acknowledging that EPA could only be required to move as quickly as feasible, the court determined that “EPA’s delinquency means that it has an ‘especially heavy’ burden of showing infeasibility.” The court then went through EPA’s representations about the amount of time it needed, often double the time allocated in the regulation, with a fine-tooth comb, rejecting many of EPA’s explanations as conclusory, and its resource limitations due to other court orders for failure to comply with other mandatory duties a “self-inflicted inconvenience” that did not meet EPA’s burden. (Notably, EPA premised much of its argument for needing additional time on not having sufficient staffing less than a month before the President proposed a budget that would cut EPA’s budget by 31 percent.) The judge ultimately ordered a remedy that was often half of what EPA had sought.

EPA’s obstinacy in the face of a clear mandatory duty bought it two years of delay, but at what cost? In addition to endangering Americans’ health and welfare, those serial actions to delay take time and resources from agency and Department of Justice staff that cannot be expended on other priorities. Why all of this time and effort to stall this rule? The landfill industry, for its part, did not even intervene in the lawsuit, suggesting this is not exactly at the top of its priority list. Is it to gain points in the deregulatory competition spurred by the “one in, two out” executive order? A reflex to stall any Obama-era regulation aimed at climate change?

One thing has become clear to me as I litigate cases against regulatory rollbacks and foot dragging. The courts that are experiencing agencies’ use of every conceivable tool in the toolbox to avoid implementing the law firsthand are taking note of this Administration’s concerted attempts to not faithfully execute the laws. And this trend is leading many courts to not give EPA and other agencies the benefit of the doubt in litigation. So in addition to wasting time and resources (while endangering the public), EPA is squandering its credibility and good will in the courts. Hopefully the federal court’s order is the end of this odyssey of intransigence with respect to landfills, but I’m certainly not confident that EPA won’t make further attempts to avoid its duties to protect the public health and welfare from dangerous landfill emissions.

The Affordable Care Act Does Not Have An Inseverability Clause

11/5/20  //  In-Depth Analysis

Contrary to challengers’ claim, Congress nowhere directed the Supreme Court to strike down the entire ACA if the individual mandate is invalidated. Congress knows how to write an inseverability directive, and didn’t do it here. That, combined with Congress’s clear actions leaving the ACA intact and the settled, strong presumption in favor of severability, make this an easy case for a Court that is proud of its textualism.

Abbe R. Gluck

Yale Law School

The Fight for Contraceptive Coverage Rages in the Time of COVID-19

5/6/20  //  Commentary

Even the Supreme Court has been required to take unprecedented steps by closing the building, postponing argument dates, and converting to telephonic hearings. Those impacts should be reflected in all aspects of the Court’s work, including the decisions it renders for the remainder of this term.

Take Care

Are There Five Textualists on the Supreme Court? If So, They’ll Rule for Transgender Workers.

5/6/20  //  Commentary

The Title VII cases before the Court present a fundamental question: are there really five textualists on the Court? We’ll find out soon.

Take Care