Last week, I wrote an article for this blog entitled “Why the EPA Should Grant Chamber of Commerce’s Request for a Hearing.” As a result of that article, Sean Hecht, Executive Director of the UCLA Environmental Law Center at UCLA School of Law, who had written a blog post about the same subject, had a little colloquy regarding the standard under which any appeal from the hearing would take place.
Mr. Hecht argues that since the “hearing” would be on the record, section 706(2)(E) of the Administrative Procedures Act would apply on a Petition for Review to the U.S. Court of Appeals, thereby subjecting the EPA to a “substantial evidence” standard rather than the “arbitrary and capricious” standard that I mentioned in my previous article. I pointed out to him that the Clean Air Act specifically states that that section of Administrative Procedures Act does not apply to EPA rulemaking under the Clean Air Act pursuant to section 307(d0(1) of the Clean Air Act and that the hearing would be pursuant to the recommendations of the Administrative Conference of the United States. This back-and-forth with Mr. Hecht made me take a little closer look at the papers filed by the Chamber and the issue in general. Upon further review, I have to admit Mr. Hecht is right: the “substantial evidence” standard is the one that would be used if there is an appeal from the hearing that the Chamber is requesting is granted.
The Chamber’s argument is a little more nuanced than what can be determined from their latest filing. In order to fully understand their position, you have to go back to their original Petition for Hearing that was filed during the comment period for the Endangerment Finding. In that Petition, the Chamber states its belief that although Section 307(d)(1) of the Clean Air Act states that sections 553 through 557 and 706 of the Administrative Procedure Act do not apply, the Clean Air Act does not preclude the Administrator from calling for a hearing on the record.
The Chamber is not asserting that the Clean Air Act expressly requires this. United States v. Florida East Coast Railway Co., 410 U.S. 224 (1973). But neither does the Clean Air Act preclude it. The Agency has the authority to adopt an on-the-record process of its own volition, in accord with its own promises of transparency and scientific integrity. Clean Air Act section 307(d)(1)’s indication that the “provisions of section 553 through 557 and section 706 of Title 5 shall not, except as expressly provided in this subsection, apply to actions to which this subsection applies” cannot be interpreted in referencing sections 553-557 of the APA to mean that EPA is prohibited from voluntarily applying such procedures, but only that EPA does not have a statutory obligation to use such procedures. It does not address EPA’s discretion in deciding whether to do so.
Chamber, 06/23/09 Petition, p. 64, fn 119. Therefore, the Chamber argues, the Administrator should exercise her discretion and call a hearing under APA 556 and 557 regarding the Endangerment Finding. See, 06/23/09 Petition, p.82. If that is the case, then there is no way that the “arbitrary and capricious” standard could apply, since 704(2)(E), As Prof. Hecht points out, specifically states that appeals of 556 and 557 hearings use the “substantial evidence” standard. That being said, I will accept Mr. Hecht’s conclusion that the “substantial evidence” standard is more restrictive than the “arbitrary and capricious” standard.
However, the point that I was attempting to make, perhaps inartfully, remains the same: by allowing an “on the record” hearing, the EPA would be a better position to shape the debate and, ultimately, shape any ensuing litigation.
As a side note, it is interesting that since the maelstrom of the Chamber’s filing last week, Mr. William Kovacs, Vice President for the Environment of the Chamber, has retreated somewhat in his “climate change v. no climate change” rhetoric. In an article in the National Journal he recently stated:
The U.S. Chamber of Commerce is not denying or otherwise challenging the science behind global climate change. Many of the news articles on our petition the past few days made that claim. They are not correct.The anti-business lobby quickly jumped on these news articles without actually reading the substance of the Chamber’s petition, casting us as climate “deniers.” That is certainly unfortunate, but not unexpected. For many of these special interest groups, dogma trumps facts, and they’ve been calling us deniers for years, even though the Chamber supports sensible and ambitious congressional and international action on global climate change. My “Scopes monkey” analogy was inappropriate and detracted from my ability to effectively convey the Chamber’s position on this important issue.
This is a marked contrast to the statement that climate change skeptic/denier Sen James Inhofe (R.-Okla.) gave the National Journal:
Why would anyone oppose a full, open, transparent hearing to determine whether evidence supporting the most consequential regulatory decision of our time—affecting schools, hospitals, farms, apartment buildings, restaurants, nursing homes, and thousands of other sources—is up-to-date, accurate, and reflective of the best available scientific research? And why wouldn’t the Obama Administration, and its supporters in the environmental community, faced with a decision potentially imposing billions of dollars of costs on consumers and small businesses, favor a process that ensures maximum public participation and stakeholder input? The answer is simple: in dismissing the Chamber’s petition as “frivolous,” EPA has made clear that, even before finalizing its regulation and considering thousands of public comments, it has already decided the question of endangerment.
Actually, Sen. Inhofe, the answer is that because the Clean Air Act does not require a hearing on the record – and even the Chamber of Commerce recognizes that.