Posted on August 12, 2020 by Seth Jaffe
Last month, Judge Yvonne Gonzalez Rogers vacated BLM’s rescission of the 2016 methane “Waste Prevention Rule.” Although Judge Rogers found many flaws in the rescission rule, I think that two are key.
The first is the Court’s rejection, under Chevron, of BLM’s limitation of the definition of “waste” to economic waste. I think that the Court’s holding is correct, but I don’t think it’s necessarily even a Chevron issue.
After Justice Gorsuch shocked many readers by holding that the plain language of the Civil Rights Act required protection of transgender people, environmental lawyers speculated whether Justice Gorsuch’s passion for plain language readings might benefit the environmental side in any pending environmental disputes. I have questioned such hopes, but I think that the Waste Prevention Rule case may not be a bad candidate. “Waste” may not be defined in the statute and there may be uncertainty in precisely what it does mean, but I don’t that there is any plausible understanding of the word that limits its meaning to “economic waste.” Venting or flaring gas into the air, damaging the air without creating any benefits, has to fit within the definition of waste.
Justice Gorsuch, are you listening?
The second important issue is the Court’s rejection of BLM’s redefinition of the “social cost of methane.” This is just one of many occasions in which the Trump administration has attempted to change Obama administration positions. To date – and including this case – the Trump administration has had a difficult time enacting its policy preferences when those policies are interwoven with scientific questions. Here, President Trump issued Executive Order 13783, which disbanded the Interagency Working Group and withdrew all of the documents created by the IWG, including its social cost of methane metric, which included global costs. That metric had been intensively vetted and was subject to peer review. In response to EO 13783, BLM withdrew the global social cost of carbon approach and replaced it within one that looked only at the domestic cost, an approach that was not subject to peer review and has been roundly criticized by economists.
Judge Rogers was not amused.
While Executive Order 13783 may have withdrawn the relevant technical support documents for political reasons, it did not and could not erase the scientific and economic facts that formed the foundation for that estimate—facts that BLM now ignores. [T]he President did not alter by fiat what constitutes the best available science. (My emphasis, because this may be the single best sentence written to date summarizing this administration’s approach to environmental regulation.)
Notwithstanding my views of this administration, I’m not so confident about this part of the opinion. I can certainly imagine conservative judges concluding that whether the U.S. government should care about the global, as opposed to domestic, cost of methane is more of a policy choice than a scientific question.
There’s little doubt though, that this is not the last case in which courts are going to have to wrestle with this thorny problem.