Last week, in NJ v. EPA, the D.C. Circuit invalidated the Bush Administration's regulations establishing regulatory limits and a voluntary cap-and-trade program for mercury emissions from power plants, as I noted here. The opinion was a decisive loss for the Bush Administration, if not for the industry. The Bush Administration's regulatory strategy was significantly less aggressive than that initially set in motion under President Clinton (albeit in the waning days of his administration), and now the EPA will have to do it again.

Whatever one's opinion of the need for greater controls on mercury emissions or the use of cap-and-trade for this sort of pollutant, the D.C. Circuit's opinion makes abundantly clear that the Bush EPA's effort was illegal. Indeed, after reading the opinion it is not at all clear to me that the EPA even tried to comply with the Clean Air Act's requirements in writing their rules.

On December 20, 2000, as the Clinton Administration was coming to a close, the EPA listed coal-fired utilities as a source of mercury emissions under Section 112(c) of the Clean Air Act (CAA), a decision that would require regulating mercury emissions as hazardous air pollutants under the Act. The Bush Administration did not agree with this approach to controlling mercury emissions, preferring a less stringent and more flexible regulatory strategy than that contemplated by the Clinton Administration. So in 2004 the Bush EPA sought to chart a different course -- one that would rely upon a voluntary cap-and-trade regime rather than stringent technology-based controls -- and that's where the problems began.

Section 112(c)(9) of the CAA only allows the EPA to delist a pollution source once the agency makes specific findings. Specifically, 112(c)(9) requires the EPA to determine that "emissions from no source in the category . . . exceed a level which is adequate to protect public health with an adequate margin of safety and no adverse environmental effect will result from emissions from any source." This is a difficult standard to meet in any case, particularly so in the case of mercury. Yet rather than try and comply with this standard, and make the requisite findings, the EPA instead contended that it did not need to comply with the plain language of the law, prompting the D.C. Circuit to compare the agency's reasoning to that employed by Lewis Carroll's Queen of Hearts.

The NRDC's John Walke, with whom I agree on relatively little, is unsparing in his critique of the EPA's position. He also notes that the EPA's cavalier approach to statutory interpretation is hardly unique to this case. It is disturbingly common.

there is a prevalent strain within EPA -- fostered by but not limited to political appointees -- that approaches the responsibility of statutory interpretation with a linguistic relativism that verges on nihilism. Under this EPA school of thought and practice, words in statutes mean whatever EPA wants them to mean. While legal doctrines afford federal agencies discretion in areas where they are considered expert, for example in scientific matters, EPA abuses these doctrines in order to distort the act of reading the English language into a policy play thing. This is precisely why one sees courts resorting to rebukes that sound "like a civics lesson by an exasperated instructor" and "The Collected Works of Lewis Carroll" to characterize the absurdities of EPA's positions.

This has been a problem within the EPA for quite some time, in administrations of either political stripe. Yet this problem may be compounded by two factors somewhat unique to this administration: 1) the minimal attention paid to environmental policy questions, and 2) an expansive view of executive authority. Combined with the EPA's traditional resistance to statutory constraints, the result is an agency out of control and without adult supervision.