Litigation Shoes on Other Feet

  • United States
  • 08/22/2017
  • Duane Morris LLP. Duane Morris is registered service mark of Duane Morris LLP.

By Seth v.d.H. Cooley

Over the past several weeks, the U.S. Environmental Protection Agency (EPA) website has presented four news releases on its homepage. One of these, a June 6, 2017 news release titled “Deadline Extended for 2015 Ozone NAAQS Areas,” describes a letter from EPA Administrator Scott Pruitt to state governors informing them that EPA had decided to extend the deadline for promulgating initial area designations, by one year, for the 2015 ozone National Ambient Air Quality Standard (NAAQS). Not included among EPA’s highlighted news releases is the more recent August 2, 2017 news release announcing a reversal of the June 6, 2017 extension – a reversal that came one day on the heels of the filing of a lawsuit by 16 state attorneys general challenging the June 6, 2017 decision to delay the area designation deadline.

It is not surprising that EPA has downplayed this reversal, as it represents the second of two recent setbacks for the deregulation program being undertaken by Administrator Pruitt. The first was the July 3, 2017 decision of the United States Court of Appeals for the District of Columbia Circuit holding that EPA cannot suspend an Obama administration rule restricting methane emissions from new oil and gas wells. This litigation defeat likely factored heavily into the decision to allow the original ozone area designation deadline to stand.

The relatively unpublicized August 2 news release includes the following statement from Administrator Pruitt: “Under previous Administrations, EPA would often fail to meet designation deadlines, and then wait to be sued by activist groups and others, agreeing in a settlement to set schedules for designation.” He added: “We do not believe in regulation through litigation, and we take deadlines seriously.” This statement is somewhat difficult to interpret, given that, in this very instance, Administrator Pruitt delayed the ozone area designation deadline, was sued by attorneys general for doing so, and then reversed course and agreed to the original designation schedule. The statement is also notable because Mr. Pruitt, when attorney general of Oklahoma, was renowned for working to change EPA regulatory policy through litigation, having sued EPA 14 times.