- The Washington Times - Friday, April 14, 2000

On March 31, a federal appeals court reviewed the Environmental Protection Agency's drinking water target for chloroform and sent the agency packing. The U.S. Court of Appeals for the D.C. Circuit found the standard "arbitrary and capricious" because the EPA ignored its own scientific conclusions about the relative risks of chloroform in setting the rule.
Chloroform, a byproduct of water chlorination, is classified as a "likely carcinogen to humans above a certain dose range" according to the EPA's own scientific panel. But that same panel concluded that chloroform is "unlikely to be carcinogenic below a certain dose range." In other words, there is a "threshold" below which exposure to chloroform in drinking water poses no risk of cancer at all. Despite these scientific findings, the EPA sought to set the target level at zero.
The EPA's decision was a clear violation of its statutory mandate to use the "best available" scientific evidence in setting target levels for drinking water. The EPA's scientific panel concluded one thing, but the regulators paid it no heed. No amount of "semantic somersaults" by the EPA could justify this course, the court ruled, and the standard was set aside. This decision was only the most recent in a string of significant legal setbacks for the EPA.
Over the past seven years, the Clinton EPA has had its rules and regulations thrown out of court time and again. Federal courts have struck down EPA rules requiring the sale of electric cars in Eastern states, mandating minimum ethanol content in reformulated gasoline, and requiring state regulators to consult with federal wildlife agencies before approving Clean Water Act permits, among many others. Courts also have remanded EPA decisions not to impose more stringent air pollution regulations and invalidated some of the EPA's more aggressive enforcement policies.
Federal courts review regulatory decisions by federal agencies with extreme deference. After all, agency officials, not judges, are supposed to be the experts. For this reason, federal agencies successfully fend off most legal challenges to their regulations. Yet as documented my forthcoming study for the Reason Public Policy Institute, the EPA under Carol Browner has had a real hard time defending its policies in court.
Whereas most federal agencies win most legal challenges most of the time, the EPA loses a majority of its cases in the federal court with primary jurisdiction over most challenges to EPA rules. In cases argued since Miss Browner took over, this court has struck down all or a substantial portion of the challenged rule in 53 percent of the cases. The EPA actually won outright only one-third of the time. In the remaining cases, the court dismissed the challenges on ripeness or standing grounds, or otherwise held the challenged EPA action to be unreviewable in federal court.
Several of the EPA's losses in federal court are quite significant in the context of environmental policy, raising question about the rigorousness of the agency's policy evaluation and development, as well as the propriety of the current administration's priorities and policies. For example, the EPA sought to help corn farmers by mandating the use of ethanol in oxygenated fuels even though independent analyses suggested that, if anything, the mandate would reduce air quality. As the court noted in striking down the rule, "EPA admits that the [ethanol rule] will not give additional emission reductions … and has even conceded that the use of ethanol might possibly make air quality worse."
In another case, the EPA sought to list methylene diphenyl diisocynate (MDI) as a hazardous air pollutant. In its analysis, the EPA insisted upon treating MDI as a gas at ambient temperatures at which MDI is a solid, and therefore cannot be released as an air emission. The court noted that EPA's approach "bespeaks a 'let them eat cake' attitude that ill-becomes an administrative agency whose obligation to the public it serves is discharged if only it avoids being arbitrary and capricious."
Regulatory analysts frequently single out the EPA for criticism, citing the high costs and minimal benefits of EPA's rules. The EPA's record in federal court suggests that many of these criticisms are justified. Whatever the nature and extent of its statutory mandate, it is important that the EPA administer its responsibility in a faithful and accountable manner. This means adhering to the priorities, and limits, established by the Congress, and making clear to the public the bases upon which it acts. It has been the EPA's consistent failure to do these things over the past several years, if not longer, that has led to its disappointing record in the courts.
If there is to be change, it must begin from within. Ultimately, if the EPA is unhappy with the way in which its rules are handled by the courts, it has no one to blame but itself.

Jonathan H. Adler is a senior fellow in environmental policy at the Competitive Enterprise Institute.

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