Reject EPA Staff’s Recomendation? Gasp!

By December 23, 2007Global Warming

More excellent analysis from Jonathan Adler of the EPA’s decision to reject California’s application for a waiver, which would have allowed the state to regulate vehicle emissions for carbon dioxide.

Several news outlets report that EPA career staff recommended that Administrator Stephen Johnson approve California’s waiver request. According to these accounts, the “unanimous opinion” of EPA legal and technical staff supported the waiver request. Does this matter? Some bloggers think so. I don’t. Agency expertise is important, but it is not the end-all-be-all of agency decision-making, and it is no substitute for politically accountable policy decisions by political appointees.

If EPA staff argued that the unambiguous language of the Clean Air Act obligated the EPA to grant California’s waiver request, I think they were simply wrong on the merits, for the reasons I have outlined in prior posts. I think there is some ambiguity in the relevant Clean Air Act language, which gave the agency some wiggle room, but (if anything) the language supports Johnson’s decision to deny the waiver. In my view, neither Section 209 of the Act or the EPA’s prior waiver decisions dictated a different result.

If the EPA staff were arguing that, in their view, the agency should grant the waiver either because (a) their preferred interpretation of the relevant statutory language required granting the waiver, or (b) they believed granting the waiver was better environmental policy, then there was nothing improper with Johnson adopting a different conclusion. Insofar as the Clean Air Act grants the EPA some discretion in how to interpret the Act’s requirements or whether to grant the waiver request, it vests the ultimate decision-making authority in the hands of political appointees, like Johnson, not career staff. In such circumstances, the policy views of EPA career staff are only relevant to the extent an Administrator wishes to take their counsel. If we disagree with the Administrator’s conclusion, it is because we prefer a different policy, not because the Administrator failed to follow the lead of agency staff.

Adler, a law professor at Case Western, follows with a discussion of the Chevron rule and deference to agencies’ regulatory decisions.

Still waiting for a major media outlet writing on this issue to cite Adler in its coverage (and Adler says he would have granted the waiver as a matter of policy). Unfortunately, discernment about the proper role of regulatory very policy-making bodies is not a strength of the mainstream media.

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