Academic journal article
By Buente, David T., Jr.; Gerard, William E.; Visser, Joel F.
Duke Environmental Law & Policy Forum , Vol. 21, No. 2
In creating the modern environmental regulatory state, Congress assigned the primary responsibility for implementation of the statutes to federal and state regulators. (1) Environmental statutory schemes tend to provide only broad guidelines, and executive agencies such as the U.S. Environmental Protection Agency (EPA) are expected to fill in the gaps through rulemakings, permit issuance, and enforcement actions. Given their technical expertise, the agencies are supposed to be well equipped to create detailed regulations that implement Congress's goal of a clean and healthy environment. This delegation of authority is significant because, in most cases, EPA and state regulators are given freedom to choose the content of environmental regulations. In the context of the Clean Air Act, the subject of this article, they choose what pollutants will be regulated, which sources of pollutants will be among the regulated entities, what standards will be imposed upon those regulated entities, the deadline by which those standards will be met, and, finally, whether or not the regulations will be enforced. (2)
In light of this broad delegation of authority, Congress plays a surprisingly small role in overseeing the content of EPA's regulations. Congress rarely takes legislative action in response to perceived inadequacies in EPA's regulatory approach. Instead, its oversight actions are largely limited to appropriations legislation and oversight hearings, which create no binding legal authority. (3) The role of federal oversight of EPA and other executive agencies has fallen on the judiciary. Under the Clean Air Act, federal courts are given authority to hear petitions challenging final agency actions such as rulemakings, petitions asserting that EPA has failed to undertake nondiscretionary duties such as regular review of National Ambient Air Quality Standards (NAAQS), and civil and criminal enforcement matters. Thus, with respect to virtually every aspect of agency action (or inaction) there is at least an opportunity to challenge EPA's regulatory decisions in federal court.
Although it is often taken for granted that the federal judiciary plays a substantial role in shaping environmental law, a closer examination reveals considerable variability based on the type of action that is before the court. Specifically, this article examines the significance of the federal judiciary's role in shaping environmental law by comparing the relative power of EPA and the courts under the various provisions for judicial oversight. The article finds that a federal court's power is at its apex when engaging in statutory interpretation of specific provisions of the Clean Air Act during challenges to final agency action under section 307. (4) From this high point, the federal judiciary's power is diminished as the standards of review become more deferential, the content of the courts' decisions becomes less substantive, and EPA retains additional authority to resolve disputes without judicial intervention.
In order to assess the judiciary's role in shaping environmental law, this article focuses on EPA action (or inaction) under the Clean Air Act. Under the Clean Air Act, EPA and the federal courts can interact in two primary ways: through suits challenging EPA's regulatory approach and through EPA enforcement actions alleging violations of the Act. With respect to each type of interaction, this article will articulate the legal basis for the judiciary's oversight role, a description of the content of those interactions, and, finally, an analysis of the significance of the federal judiciary's role in shaping the content of the Clean Air Act. Sections II and III of the article will address judicial review of citizens' suit petitions challenging final EPA action under section 307(b) (5) and allegations that EPA has failed to act to regulate under section 304(a)(2). (6) Section IV will address the federal judiciary's role in enforcement of the Clean Air Act. …