Posted on September 4, 2018 by Samuel I. Gutter
Twice in my career, I’ve had a case cut out from under me, the result of withdrawal of final EPA action that I was prepared to defend. In the first case, I was in the Office of General Counsel at EPA, working with a DOJ lawyer who was to become my career-long friend and colleague, ACOEL fellow Dave Buente. We were nearing oral argument to defend EPA’s noise regulation for garbage trucks (a case we would have won!) when EPA Administrator Anne Gorsuch revoked the regulation as part of EPA’s dismantling of the noise program.
The second instance occurred a short time later. EPA had granted a waiver that would have allowed high levels of methanol to be blended with gasoline. The waiver was by all indications a political favor for a Utah company that was close to the administration, and was challenged by the major auto companies who feared damage to the rubber gaskets and hoses in car engines. When Administrator Gorsuch departed EPA, it wasn’t long before the new leadership reversed the waiver decision, summarily ending the litigation.
Having your client reverse course is a jarring experience, but I must admit that there’s something liberating about shutting down your own case. So I know firsthand how lawyers in OGC and DOJ likely felt last month when EPA reversed Administrator Scott Pruitt’s final action – lifting limits on glider kits – and reinstated the restrictions imposed by the Obama Administration.
For those who haven’t followed this mini-series, here are the basic facts. A glider kit is a heavy-duty highway truck without an engine. A company then takes an engine pulled from a wreck or junk yard, rebuilds it, and installs it in the truck. In general, a rebuilt engine installed in a vehicle only has to meet the emission standards to which it was originally certified. So, the result is a “new” truck that is less expensive than a current-technology vehicle (including avoidance of costly federal excise taxes), but that pumps out a lot more emissions – 44 to 55 times more, according to a New York Times articlepublished last February.
The Times article included another claim: that that dominant manufacturer of glider kits, Fitzgerald Glider Kits of Crossville, Tennessee, was run by a family that had powerful connections in Tennessee Republican circles and that had curried favor with Mr. Pruitt and President Trump (displaying, on a Trump campaign visit, baseball caps with the slogan, “Make Trucks Great Again”).
Seeking to limit the number of such rebuilds – estimated to comprise up to 4% of new truck sales – the Obama EPA had imposed a cap of 300 glider kits per year on any one manufacturer, a move that would have effectively shut down Fitzgerald, with annual sales in the thousands. But on his last day in office, July 6, 2018, Administrator Pruitt issued a “no action assurance,” stating that EPA, in its enforcement discretion, would no longer enforce the cap.
Environmental NGOs and the states pounced, and in a rare and stunning move, the DC Circuit granted an administrative stay of Pruitt’s action on July 18, only one day after petitioners moved for that relief. Equally remarkable, on July 26 new EPA Administrator Wheeler announced that EPA was reversing Pruitt’s action, reinstating the cap on glider kits. Finally, on August 22, the DC Circuit dissolved the stay and dismissed the case as moot.
And with that conclusion, a small group of government lawyers got to experience for themselves not “the thrill of victory” or “the agony of defeat,” but rather “the thrill of defeat.”