Over the past few years we have heard a pretty constant refrain about “EPA overreach” which is shorthand for saying EPA has gone beyond the authority given to it by Congress. Even though as Administrator both Lisa Jackson and I pledged to follow two guiding principles – the rule of law and scientific integrity – it seemed with few exceptions that nearly every significant step EPA took to protect public health and the environment was met with criticisms of EPA overreach. So I recently asked Avi Garbow, EPA’s General Counsel, to conduct an analysis of court decisions reviewing the actions taken by the Obama EPA under the Clean Air Act – which were the largest set of actions EPA took. The purpose of this analysis was to determine whether in fact, the EPA followed these first principles of law and science.
Today I received the General Counsel’s memo summarizing the results of his analysis and in short, the record clearly shows that EPA followed the law and the science. Overall, EPA won or mostly won, 81% of these D.C. Circuit cases and lost or mostly lost only 10% of the cases, with the rest resulting in mixed decisions. And during the last two years, 2015-2016, EPA won 90% of the cases. While we are concerned about any losses in court, we recognize that our rulemakings necessarily involve making judgments about matters on which the law is not settled, and as a result, some court losses are inevitable.
That said, ours is an excellent record on its face. And several other considerations make it even more impressive. About one-quarter of the losses resulted in remands without vacatur, meaning that the rule stayed in effect while EPA took additional action – in most cases, no more than providing additional explanation — to remedy the deficiency. Furthermore, it should be noted that the judges on the D.C. Circuit are almost evenly split between those appointed by Democratic Presidents and those appointed by Republican Presidents, but Republican-appointed judges upheld EPA’s actions as often as Democratic-appointed judges.
Now as thorough and straightforward as this analysis is, I am sure it won’t quiet those who have claimed EPA overreach. But, to the many hardworking, selfless EPA career staff who accomplished so much these past eight years, I am hoping they will read the memo and be filled with pride in so many jobs well done. EPA not only followed science and the law, we identified reasonable, common sense steps forward that not only make our world cleaner and safer, but to support the amazing economic turn around and job growth that has taken place during this Administration.
But most importantly, I hope this analysis provides added comfort to the vast majority of Americans who support the work of EPA and want to know that the actions we have taken to deliver cleaner air, water and land – as well as a more stable planet – will be sustained. EPA under President Obama’s leadership has a remarkable success story to tell. My hope is that our record will remind people that government can and does work for them, and it will inspire young people everywhere to consider careers in public service because it is indeed the most noble profession.