LITIGATING EPA RULES: A FIFTY-YEAR RETROSPECTIVE OF ENVIRONMENTAL RULEMAKING IN THE COURTS.

• Author: Coglianese, Cary
• Position: The EPA at Fifty Symposium

CONTENTS INTRODUCTION I. THE CONVENTIONAL ACCOUNT OF JUDICIAL REVIEW OF EPA RULEMAKING II. REALITY CHECK: EMPIRICAL STUDIES OF EPA RULE CHALLENGES A. The Frequency of Litigation B. Success Rates III. IMPLICATIONS: THE COURTS AND EPA'S INTERNAL PROCESSES CONCLUSION APPENDIX: EPA IN THE U.S. SUPREME COURT, 1970-2020 INTRODUCTION

Nearly fifty years ago, Judge David Bazelon of the U.S. Court of Appeals for the District of Columbia Circuit declared a "new era" in the history of what he characterized as the "long and fruitful collaboration of administrative agencies and reviewing courts." (1) Making this declaration in a case involving the brand new U.S. Environmental Protection Agency (EPA), Bazelon noted with some disdain that, in the past, courts had "treated administrative policy decisions with great deference." (2) But in the purported new era he was celebrating, Bazelon saw courts using their powers to encourage agencies such as EPA to make management improvements that might eventually reduce the demand for judicial review. (3) He surmised that the very prospect of judicial review would induce agencies to develop internal standards for "principled decision-making" that might obviate the need for judicial scrutiny simply "by enhancing the integrity of the administrative process." (4)

Twenty-five years later, Judge Patricia Wald of the D.C. Circuit affirmed Judge Bazelon's view that, with the beginning of the 1970s, judicial review of agency action saw an important "rebirth." (5) Following what she described as "a legislative explosion" in the 1960s and 1970s centered on social regulation, especially on environmental protection, "newly formed (or newly energized) public interest lawyers and legal advocacy groups" started taking the government to court and the courts "began to subject agency action to much more stringent review." (6)

Yet Judge Wald also observed that, by the mid-1980s, the courts' "uneasy partnership" with the administrative state had shifted somewhat in the wake of Supreme Court decisions such as Chevron U.S.A., Inc. v. Natural Resources Defense Council, Inc.--a case centered on an EPA rulemaking in which the Court took "a more pro-agency stance for reviewing an agency's interpretation of a statute it is charged with administering." (7) Rather than judicial scrutiny inducing internal agency changes that would eventually reduce the importance of judicial oversight, as Judge Bazelon suggested, Judge Wald saw the basic tension underlying judicial review of agency action as having remained "remarkably unchanged" over the years. (8) Even Chevron still gave judges "ample room for intrusive review" at its first step. (9) Ultimately, Judge Wald's view made plain an ever-present role for judicial review. She forecast that "an unavoidable and irreducible tension" between judges' deference to and scrutiny of agencies' decisionmaking would continue long into the future "no matter how many procedural alterations and doctrinal shifts we endure." (10)

With the passage of another quarter century since Judge Wald's observations, it is possible to gain additional insight into whether judicial review has indeed diminished in importance, as Judge Bazelon implied it would, or whether the courts' role has remained relatively unchanged, as suggested by Judge Wald's account. EPA's golden anniversary provides an especially appropriate occasion to reflect on the history of litigation over EPA rules because the birth and growth of EPA has coincided with the development of modern administrative law.

With EPA having issued tens of thousands of rules over the last half-century, it is no surprise that the number of judicial decisions reviewing EPA rules has grown to such a size that any effort to distill all of them in a lawyerly fashion would easily fill an entire book. (11) We opt here instead to take an empirical approach, considering what is known quantitatively about litigation over EPA rules and how the agency has fared when its rules are subjected to judicial review.

Over the last twenty-five years, a number of quantitative studies have cast new light on litigation over EPA rules. In this article, we not only compile and synthesize the findings from these various studies but also offer new data of our own: the first quantitative comparison of all EPA rules issued since the agency's beginning with all appellate decisions involving EPA. Our aim here is not to distill doctrinal lessons as much as to offer some empirical observations about rulemaking litigation over the last fifty years.

These patterns can and do hold doctrinal implications. Based in part on perceptions that EPA has been besieged with litigation over its rules, administrative law scholars have argued for legal changes to avoid the ossification of administrative rulemaking. (12) But as we show here, the sweep of EPA's history offers an empirical portrait at odds with such conventional perceptions. Judging from the sheer magnitude of EPA rules, we see little evidence that rulemaking at the agency has been ossified. Furthermore, empirical studies reveal little to suggest that EPA has ever been overwhelmed by litigation challenging its rules. Perhaps with the exception of the last few years, the agency's rules appear remarkably resistant to reversal through litigation.

In the end, the picture is more complex than either Judge Bazelon's or Judge Wald's accounts might suggest. On the one hand, when considered against the backdrop of a widely held view that the overwhelming majority of EPA rules are reviewed in court, judicial review has had less of a presence than widely supposed, as Judge Bazelon might have expected would occur over time. (13) Yet, as Judge Wald's account would imply, a more modest role for litigation over EPA rules appears to have been established from the outset. We find stability more than a shift characterizing the data on the last half century of legal challenges to EPA rules. (14) We conclude that EPA and the courts have reached and sustained a basic equilibrium with each other throughout the last fifty years. Litigation remains a risk whenever EPA creates significant rules, but, from its earliest years, the agency appears to have learned to manage those risks through professional analysis and internal management processes that have enabled it to withstand judicial scrutiny to a far greater extent than generally acknowledged.

1. THE CONVENTIONAL ACCOUNT OF JUDICIAL REVIEW OF EPA RULEMAKING

   Although much of the early legislation granting EPA authority to adopt environmental regulations passed with bipartisan support in Congress, the agency's implementation of these statutes has been tagged as adversarial from its earliest days. Political scientist Shep Melnick's in-depth case study of the early implementation of the Clean Air Act planted the seeds of what came to be a conventional scholarly account of an agency bombarded by litigation and subjected to intrusive judicial review. (15) According to Melnick, the courts in the 1970s used EPA as a proving ground for a new theory of administrative law, with judges even sometimes playing a leading role in shaping regulatory policy. (16)

   There were indeed a number of significant court decisions in EPA cases from this period: the previously mentioned Environmental Defense Fund v. Ruckelshaus, (17) with its opinion by Judge Bazelon; the invention of what became EPA's Prevention of Significant Deterioration program due to Sierra Club v. Ruckelshaus; (18) the famous debate over the proper scope of judicial review between Judge Bazelon and Judge Harold Leventhal in their concurring opinions in Ethyl Corporation v. EPA; (19) and the invalidation of new source performance standards for cement plants in Portland Cement Ass'n v. Ruckelshaus, (20) among other examples. (21) Especially with respect to litigation at the D.C. Circuit, where most challenges to EPA rules have historically been filed, (22) litigation has often amounted simply to a second round of the rulemaking process--and, according to some observers, a politicized one at that. (23)

   Starting in the mid- to late-1980s, the view began to take hold that EPA was an agency besieged by intrusive litigation. Scholars came to accept that nearly every EPA regulation was subjected to legal challenge in the courts. (24) By the 1990s, the claim that 80 percent of EPA rules ended up in court--a claim originally put forward publicly by EPA Administrator William Ruckelshaus (25)--had "woven its way into an exhaustive body of work by journalists, government officials, and scholars." (26) This claim continues to be propagated. (27)

   The belief that almost all EPA rules are challenged has reinforced a common refrain raised by administrative law scholars about the ossification of administrative rulemaking. (28) On this view, agencies' notice-and-comment rulemaking process became bogged down as courts supposedly ramped up their scrutiny of agency decisions. At some agencies, the number of rulemaking proceedings purportedly declined as agency officials have grown extremely cautious about having their rules challenged in court. (29) The concern about excessive or unpredictable judicial scrutiny has led some legal scholars and judges to urge procedural reforms that they have hoped would reduce the amount of litigation over agency rules. (30)

   These diagnoses of an ossification malady, along with proposals for its cure, were generally grounded in case studies, anecdotes, and the occasional assertion of a generalized pattern of administrative and judicial behavior--such as Ruckelshaus's claim of an 80 percent litigation rate for EPA rules. Yet Ruckelshaus's claim itself was never based on any systematic data analysis--rather, it was a back-of-the-envelope hunch. (31) Still, it is not difficult to understand why such a claim could be so widely believed. Court decisions involving EPA rules have made their mark on U.S. law. EPA has been a party in over 40...