Court Ruling Pushes EPA Toward More Regulation

Government agencies have a tremendous advantage when it comes to defending new regulations in court. Judges start with a legal presumption that not only gives the benefit of the doubt to the agency, but sets a very high bar for reversing rules that most people might not have issued. As long as an agency’s rules are authorized by statute and not clearly erroneous or otherwise an abuse of discretion, courts will accept them.

That’s what the D.C. Circuit did today when it largely upheld the Environmental Protection Agency’s (EPA) rules on boilers and incinerators. All of the challenges to the rules by the Manufacturers’ Center for Legal Action and other business organizations were rejected by the appellate court. The court upheld one EPA requirement that could not be met by any small, remote incinerator or heavy oil-fired boiler in use today. It similarly rejected industry complaints about new energy assessment and recordkeeping requirements, as well as concerns about compliance with the rules when equipment malfunctions despite full compliance with regulations and due diligence by operators.

What is unusual is that the court agreed with several arguments made by environmental groups. It ordered the EPA to issue a regulation for cyclonic burn barrels and to decide whether certain other incinerators must be regulated under the Clean Air Act. The court also ordered the agency to provide further explanations about the decisions it made not to regulate emissions of a certain hazardous pollutant (non-dioxin/furan organic pollutant), about why certain exemptions should be allowed and about why it declined to regulate certain non-mercury emissions.

The bottom line is the court upheld all of the EPA’s regulations and ordered the agency to cover even more than it did, or at least give a full explanation of why it won’t.

Quentin Riegel

Quentin Riegel

Vice President and Deputy General Counsel at National Association of Manufacturers
Quentin Riegel is the vice president and deputy general counsel for the National Association of Manufacturers (NAM). As part of the Manufacturers' Center for Legal Action, Mr. Riegel works to strengthen the NAM's ability to promote manufacturing policy objectives through litigation. He also serves as general counsel for the Council on Competitiveness, a group of CEOs, university presidents and labor leaders working to ensure America's competitiveness. Mr. Riegel has been in the General Counsel's office since 1980.
Quentin Riegel

Leave a Reply