Posted on December 12, 2022 by Seth Jaffe
A few weeks ago, the D.C. Circuit Court of Appeals granted a writ of mandamus to the Center for Biological Diversity, imposing a deadline on EPA to issue an “effects determination” concerning the potential impacts of the pesticide cyantraniliprole. This effects determination was supposed to be issued before EPA registered the pesticide. Unfortunately, EPA did not do so. Moreover, EPA acknowledged that it routinely registered pesticides without performing the required effects determination.
In fact, EPA did not only ignore the clear statutory requirement. It also ignored a court order from 2017 requiring EPA to prepare the required determination and redo cyantraniliprole’s registration.
Why not? Basically, EPA’s position is that it just cannot do what the statute requires. Indeed, EPA has stated publicly that, at least through 2030, it will perform effects determinations only when ordered to do so by a court.
More to the point, why am I blogging about a cut and dried case such as this? Because it’s just another example of the way in which our patchwork quilt of environmental statutes is fraying at the seams. (How’s that for an extended metaphor?)
- FIFRA – requires assessments prior to registration that EPA cannot begin to accomplish.
- ESA – Basically the same. The listing process is pretty much on a schedule determined by citizen suits and court orders.
- The Clean Water Act – It’s routine for EPA to take more than 10 years to act on NPDES permit renewals.
- The Clean Air Act – The Supreme Court has ruled that it does not provide authority for EPA to address the defining issue of our time. Many people, including me, think that SCOTUS got it wrong, but I don’t think that the decision was crazy. More to the point, if West Virginia v. EPA had occurred in the 1970s, Congress might actually have gone to work and fixed it. There’s little chance of that happening now.
- CERCLA – We’ve clear-cut numerous forests to supply the paper needed for all of the cases criticizing CERCLA’s drafting. Now, EPA is proposing to list certain PFAS as hazardous substances. The listing itself is defensible, but anyone with eyes open knows that the resulting litigation nightmare will be truly … nightmarish.
I could go on. Is there any likelihood that Congress will act to fix any of these problems? I didn’t think so.
The various statutes passed in the 1970s into the early 1980s have resulted in many benefits. They created a pathway towards cleaning our air, water, and land. Since then, we have the shining success of the Clean Air Act amendments of 1990, but pretty much nothing else. Those early statutes, however much they accomplished, were flawed when they were written, and are clearly not up to today’s challenges.
I know I’m not the first to raise these issues. Plenty of smart people have proposed creative ways to solve the problems I’ve described. My friend Dan Esty has suggested what is essentially a market-based approach to environmental regulation. One of my law professors, Guido Calabresi, recognized the broader problem of the ossification of statutes almost forty years ago, making the novel suggestion that we might treat statutes the way we treat the common law, allowing judges to adapt statutes to changing circumstances. This would hardly be in tune with the current vogue for originalist modes of interpretation, but it is at least an approach that recognizes the problem.
The key issue, however, is that it’s difficult to see any of these creative solutions actually being implemented. And so we just leave it to EPA to muddle through.