Read the blog post (from January 19) by Gina McCarthy on U.S. EPA’s blog.
Over the past few years we have heard a pretty constant refrain about “EPA overreach” which is shorthand for saying EPA has gone beyond the authority given to it by Congress. Even though as Administrator both Lisa Jackson and I pledged to follow two guiding principles – the rule of law and scientific integrity – it seemed with few exceptions that nearly every significant step EPA took to protect public health and the environment was met with criticisms of EPA overreach. So I recently asked Avi Garbow, EPA’s General Counsel, to conduct an analysis of court decisions reviewing the actions taken by the Obama EPA under the Clean Air Act – which were the largest set of actions EPA took. The purpose of this analysis was to determine whether in fact, the EPA followed these first principles of law and science.
Today I received the General Counsel’s memo summarizing the results of his analysis and in short, the record clearly shows that EPA followed the law and the science. Overall, EPA won or mostly won, 81% of these D.C. Circuit cases and lost or mostly lost only 10% of the cases, with the rest resulting in mixed decisions. And during the last two years, 2015-2016, EPA won 90% of the cases. While we are concerned about any losses in court, we recognize that our rulemakings necessarily involve making judgments about matters on which the law is not settled, and as a result, some court losses are inevitable.