Posted on January 30, 2012 by Andrea Field
On August 8, 2011, EPA published its very lengthy Cross-State Air Pollution Rule (CSAPR). An indication of CSAPR’s complexity — and its unpopularity with those affected by it — is that its promulgation prompted states, cities, labor unions, industry trade associations, and individual industry sources to submit to EPA 62 requests for administrative reconsideration and to file 45 petitions for judicial review of the rule. Because CSAPR is a Clean Air Act rule of “nationwide scope and effect,” under § 307(b), the 45 petitions challenging that rule had to be filed in the D.C. Circuit.
The focus of my article today is not the content of CSAPR (though there is much in the final rule that is a cause for concern), but rather on some of the procedural difficulties faced by large groups of appellants challenging a complex EPA rule in the D.C. Circuit. In particular, my focus is on the restrictions placed by the court on the number and length of briefs that can be filed in a case that involves 45 aligned petitioners who say they have over 55 substantive issues that they want to raise in their principal briefs.
Under Rule 28.1(e) of the Federal Rules of Appellate Procedure (FRAP), an “appellant’s principal brief . . . is acceptable if . . . it contains no more than 14,000 words . . ..” In a case involving only one appellant challenging a simple agency rule, the D.C. Circuit has appropriately interpreted FRAP 28.1(e) as allowing that one appellant to file a principal brief not to exceed 14,000 words. But what happens when dozens of aligned petitioners challenge an extremely lengthy and complex agency rule? And what happens when — fearing the “speak now or forever hold your peace” aspects of Clean Air Act § 307(b) — those numerous aligned appellants must address scores of different aspects of the final rule?
In Alabama Power Co. v. Costle, the first complex Clean Air Act case brought in the D.C. Circuit, the court came up with an innovative — and effective — way of allowing the aligned petitioners to present their concerns. In that case, the court’s Chief Staff Counsel oversaw a process that allowed the aligned petitioners to file a joint statement of the case and a reasonable number of separate, reasonable-length issue briefs. (In an interview with Business Week during the litigation, the three judges hearing that case commented favorably upon the approach that their Chief Staff Counsel had developed.)
In the decades following the Alabama Power litigation, however — as the number and complexity of EPA rules has grown, spawning more lawsuits by increasingly larger numbers of appellants — the D.C. Circuit has taken steps that have reduced substantially the number and length of briefs that parties can file. Typically, motions panels on the court direct aligned petitioners, even very large numbers of aligned petitioners, to file just one — or at most two — 14,000-word briefs. And perhaps they will allow a short additional brief to be filed by intervenors and amicus curiae in support of petitioners. But rarely (if ever) will the D.C. Circuit take the hands-on approach that it did in Alabama Power, i.e., being actively involved in figuring out what the key issues are and ensuring that enough space is devoted to the briefing of each such issue. Thus, it was not a surprise when, on January 18, 2012, the D.C. Circuit issued a briefing order in the CSAPR litigation, authorizing the 45 aligned petitioners to file “no more than two briefs, not to exceed a combined total of 28,000 words” and allowed intervenors and amicus curiae in support of petitioners to file just one joint “not to exceed 7,000 words[.]”
Most appellants in these kinds of cases understand (and may even empathize with) the desire of the reviewing judges not to have to read dozens of lengthy briefs addressing the inner workings of labyrinthine Clean Air Act programs. However, as EPA develops ever-more-complex regulatory programs — programs that, under the terms of Clean Air Act § 307(b), must be challenged upon promulgation — petitioners are in a bind. Aware that there will be a limit on the amount of space they will have in which to explain a challenged EPA program and to articulate why parts of that program are unlawful, petitioners must often choose to brief only a few issues, thus perhaps waiving their rights to challenge other program elements that are of concern.
Conspiracy theorists among us might be questioning whether court limits on briefing serve as motivation to EPA to make new regulatory programs even more complex. In particular, such individuals wonder whether EPA rule drafters are now producing more complicated rules because they know that the more complex new rules are, the less likely it is that rule challengers will — under current court procedures — be able to present their concerns fully to the reviewing court.
This surely had to have been in the mind of one attorney who several years ago had to present oral argument in the D.C. Circuit on an issue which had to be briefed in very few words. During argument, she was told by one of the judges that she might well have a good point, and it was just too bad that the point had not been developed more fully in her brief. The advocate in that case is to be commended for not losing her cool and condemning a system under which words per petitioner seem to be allocated in inverse proportion to the complexity of the case(s) before the court. But she was almost certainly thinking something along those lines.
And speaking of lines, I offer the following lines of verse to make this point:
The rules produced by EPA
Have caused concerns for years.
But parties once thought courts would hear
Their views with open ears.
In complex cases of today,
Those ears are closed, I fear.
It seems the more you want to say,
The less the courts will hear.