Wall Street Journal columnist and editorial board member Kimberley Strassel misrepresented the win-loss record of the Environmental Protection Agency (EPA) in court in order to suggest the Obama administration's environmental rulemaking is frequently illegal.
In an April 9 column, Strassel attempted to smear President Obama's nominee for EPA Administrator, the highly qualified and widely regarded Gina McCarthy, with the accusation that she shared blame for an alleged "embarrassing string of [legal] defeats" suffered by the Obama administration while serving as the senior EPA official in charge of regulating air pollution. From the WSJ:
[C]ritics have also started to take note of the embarrassing string of defeats the courts have recently dealt the agency regarding rules it issued in Mr. Obama's first term. Those judicial slapdowns are making a mockery of former Obama EPA Administrator Lisa Jackson's promise in 2009 to restore the agency's "stature" with rulemaking that "stands up in court."
This past year alone has proven a banner year for EPA rebukes[.]
Mrs. McCarthy--who has spent four years as EPA Assistant Administrator for the Office of Air and Radiation--was nominated precisely because she shares Mrs. Jackson's aggressive view of the EPA's authority. With the administration now looking to push the EPA boundaries even further on climate, expect senators to grill Mrs. McCarthy on why she believes those coming rulemaking procedures will fare any better in court. A number of senators are particularly focused on this question, since it is their authority Mr. Obama is usurping in having the EPA unilaterally implement a climate program.
But Strassel - like influential House Republicans - misrepresents the record of the Obama EPA in court, especially in the area of Clean Air Act rulemaking, which McCarthy oversaw. As opposed to the win-loss record of the Republican EPA under George W. Bush, the Obama administration has been highly successful in defending its Clean Air Act actions in court.
A National Resources Defense Council (NRDC) analysis of Clean Air Act litigation under both the Bush and Obama administrations clearly shows that the so-called embarrassing string of "judicial slapdowns" was suffered by the EPA under the former, not the latter. Furthermore, because the Obama EPA has been overwhelmingly successful in defending its enforcement of the Clean Air Act - whereas the Bush EPA was overwhelmingly unsuccessful in undermining this vital legislation - Administrator Lisa Jackson's promise for rulemaking that "stands up in court" was fulfilled, despite Strassel's claim otherwise. As explained by John Walke, director of the Climate and Clean Air Program and senior attorney for the NRDC:
First, Chairman Whitfield [R-KY] and other Republican and industry critics are wildly off base in suggesting that the Obama administration EPA has lost many Clean Air Act cases brought by industry. Of the 20 Clean Air Act lawsuits in the D.C. Circuit that industry parties have mounted against Obama EPA rules, industry has prevailed in only 5 of those cases.
Second, environmental and public health groups prevailed in 27 lawsuits challenging Bush EPA rules for violating the Clean Air Act and failing to uphold required public health safeguards. Even adjusting for the 8 years of two Bush administration terms, versus the 4 years of the Obama administration's first term, environmental and public health groups prevailed nearly 3 times more often against Bush EPA rules than industry has prevailed against Obama EPA rules.
Fourth, environmental and public health groups prevailed in challenging Bush EPA clean air rules (for being too weak) far more often (27 times) than industry parties prevailed in challenging Bush EPA rules for being too strong - 3 times. These results confirm the reality that the Bush administration engaged in rampant lawbreaking to weaken Clean Air Act requirements, but virtually never interpreted the Act so stringently that industry managed to overturn those rules in court.
Fifth, the ratio of court victories to losses by environmental and public health groups challenging Bush EPA rules was 27 to 11, and the ratio of court victories to losses by industry groups challenging Obama EPA rules is currently 5 to 15.
Sixth, the Obama EPA has prevailed entirely against industry legal challenges more often in 4 years (in 15 cases) than the Bush EPA managed against environmental group challenges in 8 years (in 11 cases).
Ultimately, Strassel's inaccurate characterization of the courts' treatment of EPA rulemaking under the Obama administration is just an excuse for the WSJ and the Republican Party to continue their attack on the president's attempts to combat climate change. In fact, the EPA has gone out of its way to ensure that action it takes to combat this national threat is fully consistent with its authority under the Clean Air Act, as opposed to the EPA under the Bush administration. McCarthy's reported commitment to scrupulously enforcing the text and intent of environmental legislation is part of the reason that praise for her previous air pollution work has come from both Republicans and Democrats, in addition to representatives from both industry and environmental interests.
Indeed, a confirmation hearing scheduled for the day before McCarthy's sheds light on why the EPA has had to ensure "its technical and legal analysis needs to be bullet proof." On April 10, the Senate Judiciary Committee held a hearing on the president's most recent nominee to the crucially important D.C. Circuit Court of Appeals, Principal U.S. Deputy Solicitor General Sri Srinivasan. This federal court, which hears the vast majority of environmental litigation, is currently skewed toward Republican nominees, a result of the rampant filibustering of the president's judicial nominees.
Until this conservative tilt is balanced - hopefully with the confirmation of highly qualified nominees such as Srinivasan - an EPA Administrator like McCarthy might be exactly what is needed to continue the EPA's winning record before a hostile D.C. Circuit.