A Foolish Consistency Is The Hobgoblin Of Little Minds: So Said Emerson, So Says EPA

Foley Hoag LLP
Seth D. Jaffe

August 11, 2016

On Wednesday, EPA issued a final rule amending its “Regional Consistency Regulations.”  The new rule provides that EPA will only follow adverse judicial decisions in the areas of the country where such judicial decisions are applicable.

Previously, EPA’s Clean Air Act regulations specifically required EPA to “assure fair and uniform application [of the CAA]  by all Regional Offices.” As I previously discussed, this regulation came back to haunt EPA in National Development Association’s Clean Air Project v. EPA, when the Court said that, while EPA might otherwise be free to engage in what is known as “intercircuit nonaquiescence”, EPA is bound by its own regulations, so that, at least under the CAA, it is required to follow adverse judicial decisions nationally, in order to maintain regional consistency.

I actually think EPA got this one right.  The law does not otherwise require EPA to follow an adverse 7th Circuit judicial decision outside the 7th Circuit.  Why should it voluntarily choose to do so?  Moreover, what if, after an adverse decision in one circuit, another circuit rules in favor of EPA?  How should it maintain consistency in such circumstances?

The regional consistency rule also seems relevant in light of the recent decision rejecting EPA’s disapproval of the Texas regional haze SIP.  EPA argued that the case should be heard in the D.C. Circuit, because it was of “national scope.”  The 5th Circuit disagreed.  It now turns out that EPA may have won by losing.  If the Texas SIP had been reviewed by the D.C. Circuit because it had nationwide scope, EPA would have been required to follow the Court’s ruling nationwide.  Under the new rule (assuming that it applies to decisions issued before the rule is finalized!), EPA may ignore the Texas SIP decision outside the 5th Circuit.

This article is being provided for informational purposes only and not for the purposes of providing legal advice or creating an attorney-client relationship. You should contact an attorney to obtain advice with respect to any particular issue or problem you may have. In addition, the opinions expressed herein are the opinions of Mr. Jaffe and may not reflect the opinions of Synergy Environmental, Inc., Foley Hoag LLP or either of those firms’ clients.

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