On May 16, in Texas v. EPA, the 5th Circuit Court of Appeals rejected EPA’s nonattainment designation for two counties in Texas. What I find most interesting about the case is the reaction to it. Inside EPA (subscription required) states that the decision is:
Notable in that it offers EPA less deference on technical matters, following a key Supreme Court ruling limitation statutory interpretation deference.
However, the Inside EPA story, while quoting the relevant language from the decision, seems to have ignored or misunderstood the basis for the court’s decision, which does not turn on the decision in Loper-Bright. Indeed, as Inside EPA noted, the Court clearly stated that:
It is not possible to interpret Loper Bright as discarding deferential review of agency factfinding. The Supreme Court relied extensively on the provisions of the APA in its Loper Bright opinion. The Court distinguished a court’s deferential standard for reviewing findings of fact under the APA from the absence of deference for legal conclusions, stating that the APA prescribes no deferential standard for courts to employ in answering those legal questions. That omission is telling, because Section 706 does mandate that judicial review of agency policymaking and factfinding be deferential.
The Court’s rationale for rejecting EPA’s nonattainment decision was really a plain vanilla application of the APA. Here’s the essence:
"EPA relied solely on Sierra Club’s modeling that had conceded limitations and that was further called into question by conflicting monitoring data. Given this, EPA should have designated the areas as unclassifiable or rationally explained why an alternative designation was clear and not debatable. EPA did neither. Instead, EPA seems to have forced a result on sparse and suspect evidence."
The Sierra Club modelling relied on by EPA predicted higher concentrations of sulfur dioxide than were detected at a monitoring station. EPA’s attempt to explain away this discrepancy was a non sequitur; EPA said that the monitor was not in a location likely to be affected by the power plant at issue in the case. However, the question wasn’t whether the monitoring station was near enough to the power plant to accurately predict nonattainment. Instead, the question was simply whether the Sierra Club model could be relied on where it predicted concentrations that did not match actual monitoring data. Verifying that a model fits available data is always the first step in determining the model’s reliability, and EPA ignored data showing that the model was not reliable.
As I noted in a prior post, whatever one thinks of the decision in Loper Bright, it does not mark the end of judicial deference to agency technical judgments. That deference was confirmed in Loper Bright and is not undermined by Texas v. EPA.
