EPA Touts Winning Record, but Some Attorneys Dispute Its Number

Source: By Ellen M. Gilmer, Bloomberg Law • Posted: Thursday, August 27, 2020

The EPA’s top lawyer is trumpeting the agency’s success rate in court, saying it’s won two-thirds of “significant” environmental cases during the Trump administration.

But the assertion, made by the agency’s general counsel, Matthew Z. Leopold, in an Aug. 10 opinion piece in Bloomberg Law, clashes with—and also comes in response to—other tallies showing judges have largely sided with the EPA’s state and environmental adversaries.

Leopold said his goal was to “set the record straight,” showing the Environmental Protection Agency’s success rate on defensive litigation is much higher than outside scorecards suggest. Those trackers interpret court decisions “in the worst possible light” for the Trump administration, he said in an interview Monday.

But the competing conclusions from the EPA and outside studies have left some lawyers scratching their heads about which cases should count in win-loss rates, and who’s telling the full story.

The EPA’s claim “doesn’t square with my tracking of wins and losses,” said Crowell & Moring LLP environmental attorney Thomas A. Lorenzen, a former Justice Department lawyer who has kept his own count of legal outcomes across administrations.

‘Underperformed’

Federal courts have issued hundreds of decisions in EPA-related cases in recent years, with topics as varied as deregulation, permitting, public records, and employment law, according to a Bloomberg Law docket analysis.

All litigation trackers feature some degree of subjectivity, as examiners must decide how to define wins and losses, and which cases to include in the first place—choices that can result in vastly different conclusions about overall success rates.

A New York University Institute for Policy Integrity analysis, for example, lists just nine EPA wins out of 47 regulatory cases tracked. The institute has filed amicus briefs favoring plaintiffs in some environmental cases during the Trump administration.

An Earthjustice tracker similarly shows the EPA winning around 20% of cases the group has pursued against the agency. The Center for Biological Diversity’s internal count shows the EPA prevailing in just three of the group’s 30 resolved cases against the agency.

High-profile EPA losses have dominated headlines during President Donald Trump’s time in office, including when judges blocked the agency from halting oil and gas methane standards in 2017, when they overturned a new policy for advisory board membership earlier this year, and when the Supreme Court rejected a key Clean Water Act interpretation in April.

“You can certainly pick out areas where EPA has done well in the courts, but I think on significant issues it has underperformed compared to prior administrations, both Democrat and Republican,” Lorenzen said. Studies show that federal agencies generally win about 70% of regulatory cases.

What’s Counted

The EPA agreed to share its underlying case list for this story, minus lawsuit summaries and the agency’s classification of outcomes as wins and losses. The claim of a two-thirds success rate is based on 58 “significant” suits involving Trump-era actions since 2017.

Leopold said the analysis, compiled by career attorneys in the EPA’s Office of General Counsel, includes non-merits procedural wins; excludes enforcement cases; excludes cases that accuse the EPA of missing deadlines, which challengers typically win; and excludes cases that focus on non-environmental statutes, including the Freedom of Information Act.

For cases with mixed outcomes, the agency weighed whether court opinions were largely favorable or largely adverse to the agency, and counted them accordingly. Leopold accused other trackers of painting a biased picture by saying the EPA lost cases in which judges largely sided with the agency but ruled against it on some minor issue.

He pointed to a 2019 case in which a federal appeals court upheld most of a toxic chemicals rule but invalidated one significant section. Trackers from both the Institute for Policy Integrity and Earthjustice count the ruling as a loss for the EPA. Leopold acknowledged that it fell in a gray area but said, “I would still count it as a win because the vast majority of our rule was upheld.”

“Anyone who’s not counting that is not being fair to the agency and the administration,” he said. “They’re just trying to rack up adverse decisions so they can publish those statistics.”

On Target

The agency’s assessment seemed on target to some lawyers. Marcella Burke, who was the EPA’s deputy general counsel during the beginning of the Trump administration, said it reflects victories in important cases, including challenges to the EPA’s general permit for oil and gas operations in the Gulf of Mexico, and the agency’s decision to forgo a financial assurances regulation for hardrock mining.

“If your benchmark for success is regulatory reform and repeal, which was a policy objective in this administration, then the EPA has been successful,” the King & Spalding LLP partner said.

But others quibbled with what the EPA deemed “significant,” saying the filter excludes some major losses and counts some victories they view as minor.

Any analysis that aims to fairly represent an administration’s record shouldn’t include “routine, run-of-the-mill” decisions on issues that remain consistent regardless of who’s in charge of the agency, said Sidley Austin LLP attorney David Buente, who represents industry clients.

“I would take this and view it skeptically,” Buente said of the EPA’s claimed success rate, though he said he suspects environmentalists are “cherry-picking the cases, too, to their maximum advantage.”

Georgetown Law professor William W. Buzbee, meanwhile, criticized the EPA’s list for leaving out the Supreme Court’s Clean Water Act case, which rejected a Trump-era policy but centered on a legal fight between outside parties. That “undoubtedly was an important action and loss,” he said.

A fair analysis of “significant” cases should zero in on those actions that affect levels of pollution and nationwide regulation, he said, because they “have much more enduring significance.”

Procedure Versus Merits

Institute for Policy Integrity litigation director Bethany Davis Noll, who oversees the institute’s tracker, said the EPA’s list had nearly two dozen cases that she had left off because they were either duplicative, still pending, not focused on Trump-era actions, or resolved on procedural grounds rather than on the merits, she said.

For example, the EPA included a ruling that left intact the agency’s decision to jettison its so-called “once in, always in” permitting policy, after the judges concluded the action wasn’t subject to court review.

It makes more sense to exclude those kinds of procedural decisions, Noll said, because “the decisions say nothing about whether an agency’s action complied with the law.” Academic studies of agency success rates have traditionally factored out such cases, she said.

Leopold defended the inclusion of procedural victories rooted in the Administrative Procedure Act because it “is just as much a substantive law as any of our other statutes.”

At the same time, the agency omitted FOIA cases and a pair of high-profile decisions against the EPA’s attempt to revamp membership criteria for federal boards that advise on environmental policies. Leopold said he left out the cases because they dealt with the Federal Advisory Committee Act, not environmental statutes.

Earthjustice’s vice president of litigation, Drew Caputo, took issue with that logic, saying “EPA has to comply with all laws, not just environmental laws.”

Parsing Cases

Noll also found 14 cases on the EPA’s list that “flew under the radar and we are adding them to our tracker.” But she flagged 10 others the institute tracked that the EPA left out—mostly deadline cases and lawsuits in which the EPA took action that resolved legal complaints.

The Center for Biological Diversity also includes those, counting victories for the group when lawsuits result in favorable settlements or prompt agency action, general counsel John Buse said.

But that can lead to skewed numbers, Leopold said, pointing to litigation involving the agency’s pandemic-era enforcement policy. The NYU institute counted the case as a loss because the EPA announced it was phasing out the policy, but Leopold said the move “had nothing to do with” the court case.

A full understanding of the Trump EPA’s overall litigation success rate is likely years away. “Big-ticket items” are the most important measures of the Trump administration’s effectiveness, and most of those cases are still pending, said Lorenzen, the former Justice lawyer.

Courts are still working through litigation over the EPA’s adoption of the industry-friendly Affordable Clean Energy Rule; its reinterpretation of federal water jurisdiction; and its elimination of the legal justification for federal limits on mercury and air toxics, to name a few.

“We have more than 100 other cases that just haven’t gotten to resolution yet,” Earthjustice’s Caputo said. “There’s a pretty big universe.”

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