One of the points I’ve made several times on this blog is that, for all the times liberal or progressive judges are accused of “judicial activism,” many “conservative” judges (usually members of the misleadingly-named The Federalist Society) are more than happy to ignore their own claimed principles of judicial restraint when it serves their purposes. Justice Scalia has made a habit out of it, completely ignoring his own “textualism” and “originalist” approach when it suits his political purposes, while other Judges content themselves to sporadic outbursts of judicial activism when the stakes are high. I gave an example of conservative judicial activism three years ago when the United States Court of Appeals for the District of Columbia ignored several recent Department of Defense regulations, a sixty-year-old Act of Congress, and a basic principle of federalism to dismiss lawsuits brought by more than a dozen Iraqis who were “beaten, electrocuted, raped, subjected to attacks by dogs, and otherwise abused” by private contractors working as interpreters and interrogators at Abu Ghraib prison.


This week, another example jumped into the public consciousness, when Washington Post columnist Steven Pearlstein wrote about “The judicial jihad against the regulatory state,” using the recent Homer City Generation v. EPA opinion written by Judge Brett Kavanaugh, who was appointed to the court by President George W. Bush after serving the Republican Party to help impeach Bill Clinton and to fight Bush v. Gore in 2000. The American Constitution Society’s blog chimes in with another example of Judge Kavanaugh attacking the Environmental Protection Agency (and, to be fair, with a counterexample of Judge Kavanaugh blocking the State of South Carolina from implementing its “Voter ID law,” apparently another disenfranchisement tool like Pennsylvania’s Voter ID law). Ed Whelan at National Review Online attempted a tepid defense of Judge Kavanaugh’s opinion, but in the end he merely parroted Judge Kavanaugh’s own assertion that he was following the will of Congress.


Now on to Homer City Generation v. EPA. The case involves the EPA’s attempt to implement the Clean Air Act, specifically the parts relating to upwind States’ obligations to ameliorate pollution to downwind States. Despite the length of the opinion (60 pages) and the dissent (another 44 pages), and the case’s tortured procedural history, the case isn’t that complicated. As you read it, bear one important principle of federalism in mind: the Supreme Court has held that if a statute is “silent or ambiguous with respect to the specific issue,” and if “the agency’s answer is based on a permissible construction of the statute,” a court must defer to the agency’s interpretation.” Chevron U.S.A. v. Natural Resources Def. Council, 467 U.S. 837, 843 (1984). Judicial deference to agencies is one of the key components of our federal system today, and it is regularly used to dismiss challenges to federal agency actions.


Section 109 of the Clean Air Act of 1990 requires the EPA to promulgate National Ambient Air Quality Standards (NAAQS), which the EPA has done for carbon monoxide, lead, nitrogen dioxide, ozone, particle pollution, and sulfur dioxide. 42 U.S.C. § 7409. The very next section of the CAA, Section 110, 42 U.S.C. § 7410, says how State implementation plans for the NAAQS standards should work:

Each State shall … adopt and submit to the [EPA] Administrator, within 3 years (or such shorter period as the Administrator may prescribe) after the promulgation of a [NAAQS standard], a plan which provides for implementation, maintenance, and enforcement of such primary standard in each air quality control region (or portion thereof) within such State.

In case you didn’t see it, that’s the word “shall” in the first clause. In other words, within three years of the EPA’s promulgation of a NAAQS, States are required to submit a plan for dealing with their air quality (these are known as State Implementation Plans, a.k.a. “SIPs”). Dissent, p. 17-18.


If a State doesn’t submit a SIP, or if it submits a deficient SIP, then section (c) of that same statute says:

(1) The Administrator shall promulgate a Federal implementation plan at any time within 2 years after the Administrator—

(A) finds that a State has failed to make a required submission or finds that the plan or plan revision submitted by the State does not satisfy the minimum criteria established under subsection (k)(1)(A) of this section, or

(B) disapproves a State implementation plan submission in whole or in part, unless the State corrects the deficiency, and the Administrator approves the plan or plan revision, before the Administrator promulgates such Federal implementation plan.

Notice, again, the word “shall.” Congress told States they “shall” prepare a SIP, and, if they don’t (or if they prepare an inadequate SIP), then the EPA “shall” prepare a Federal implementation plan (“FIP”). Simple, right? Notice also that the EPA retains a lot of discretion; it doesn’t have to give the States three years, and it can implement a Federal plan immediately if it likes, the only requirement is that it shall have a plan within two years of the State failing to submit a plan.


Now for a little history. The EPA has been trying to make the Clean Air Act’s downwind provisions work for decades. The D.C. Circuit Court knocked out their first attempt in Michigan v. EPA, 213 F.3d 663 (D.C. Cir. 2000). The Bush Administration came back with a surprisingly good revision — one that was estimated to prevent over 17,000 premature deaths a year, and provide over $100 billion in health benefits — the Clean Air Interstate Rule (“CAIR”), which the D.C. Circuit knocked out again in North Carolina v. EPA, 531 F.3d 896 (D.C. Cir. 2008), but which was at least kept as the law until the EPA came back with something else.


The current case involves the EPA’s attempt to make the D.C. Circuit happy. Recall the process I describe above: the States “shall” submit an adequate State plan (SIP) and, if they don’t, the EPA “shall” promulgate a Rule noting the deficiency and then eventually create a Federal plan (FIP).


This time around, twenty-nine States didn’t bother to submit one of those required SIPs. The EPA promulgated a Final Rule pointing out failure, and noted that, under Section 307 of the CAA, 42 U.S.C. § 7607(b)(1), “Any petition for review under this subsection shall be filed within sixty days from the date notice of such promulgation, approval, or action appears in the Federal Register.” Despite that, not one State filed a petition for review.


The EPA finalized their plan, in August 2011, known as the Transport Rule or the Cross-State Air Pollution Rule. It’s a great program, one that will help avoid tens of thousands of premature deaths and illnesses — including over 400,000 cases of aggravated asthma over the next two years in the Eastern United States, something of not-so-slight importance to me while I sit here typing and listening to one of my daughters coughing — and reap hundreds of billions of dollars in public health benefits. Every dollar of costs in the CSAPR will be made up by a hundred dollars in public health benefits.


So what happened in Homer City Generation v. EPA? Judicial activism: a federal court ignored the statutes passed by Congress, and the discretionary decisions vested in a federal agency, because it didn’t like the result. Judge Kavanaugh, joined by his fellow George W. Bush nominee and Federalist Society member Judge Thomas Griffith (who, to be fair, was appointed with considerable support from Democratic lawyers, like David Kendall, and politicians, like Barack Obama), completely rewrote the state-plan-then-federal-plan procedure of the Clean Air Act. As Judge Kavanaugh concluded:

[T]he Clean Air Act affords States the initial opportunity to implement reductions required by EPA under the good neighbor provision. But here, when EPA quantified States’ good neighbor obligations, it did not allow the States the initial opportunity to implement the required reductions with respect to sources within their borders. Instead, EPA quantified States’ good neighbor obligations and simultaneously set forth EPA-designed Federal Implementation Plans, or FIPs, to implement those obligations at the State level. By doing so, EPA departed from its consistent prior approach to implementing the good neighbor provision and violated the Act.

Re-read Section 110 of the Clean Air Act and see if you can figure out how on earth they reached that result. The States aren’t entitled to any “initial opportunity” at all, because the EPA can cut those three years short if it so feels. Moreover, the States already had their “initial opportunity” and they failed to use it, so the EPA did exactly what the Clean Air Act required: it made its own Federal plan. That’s what the statute says, and that’s what the Court should have followed; instead, the Court created a completely new procedure, literally two decades after the fact, to punt the case further down the field and delay the regulations even longer.


But that’s not all. Judge Kavanaugh also directly assailed the Transport Rule, arguing:

[T]he statutory text grants EPA authority to require upwind States to reduce only their own significant contributions to a downwind State’s nonattainment.  But under the Transport Rule, upwind States may be required to reduce emissions by more than their own significant contributions to a downwind State’s nonattainment.  EPA has used the good neighbor provision to impose massive emissions reduction requirements on upwind States without regard to the limits imposed by the statutory text.  Whatever its merits as a policy matter, EPA’s Transport Rule violates the statute.

There’s just one problem: Congress specifically told the D.C. Circuit it couldn’t even consider this hypothetical argument. Remember Section 307 of the CAA, the one that required States file any petitions within sixty days of the Final Rule? The States plainly failed that, so the federal courts don’t even have jurisdiction to hear that argument anymore. Judge Kavanaugh responded to this problem with a bizarre, three-page-long footnote (#18, beginning on page 34) that says the EPA kind-of should-of known this issue could be raised later — exactly the sort of post hoc rationalization Congress prohibited by putting the deadline in Section 307.


Moreover, this argument is just plain wrong. As Judge Rogers explains in dissent, beginning at page 40, creating this hypothetical and finding a problem with it requires stringing all kinds of erroneous suppositions together. Judge Kavanaugh had to rule the EPA messed up by not calculating the required emission reductions “on a proportional basis that took into account contributions of other upwind States to the downwind States’ nonattainment problems,” Op. at 38, even though the North Carolina opinion already said the EPA’s measurement of significant contribution need not “directly correlate with each State’s individualized air quality impact on downwind nonattainment relative to other upwind states.” 531 F.3d at 908. He similarly concludes that the EPA failed to consider the effect of in-State emissions, Op. at 38, when in fact the EPA did that in the Transport Rule itself, considering “local (in-state) reductions” and whether downwind air quality problem “is a predominantly local or in-state problem.”


The EPA has filed a petition for the full D.C. Circuit to hear the case en banc. Who knows if it will work — but we shouldn’t deceive ourselves into believing that law is somehow free of politics, that judges are really just umpires in robes.