Harvard law professor criticizes Spruce ruling

In an article in the latest edition of The Environmental Forum, Harvard law professor Richard Lazarus slammed the ruling by U.S. District Judge Amy Berman Jackson overturning the U.S. Environmental Protection Agency’s veto of the Spruce No. 1 mine permit. Lazarus teaches?? environmental law, natural resources Law, Supreme Court advocacy and torts at Harvard.

He said Jackson’s ruling was “stunning,” especially since EPA’s veto authority over Section 404 permits issued by the U.S. Corps of Engineers had never been disputed. The only issue, Lazarus said, should have been whether that authority applied to permits that had already been issued, and the law seemed to support EPA’s reasoning, as it specifically referred to the “withdrawal of specification” and said the veto authority could be exercised “whenever” the director determined a permit would have adverse environmental impacts.

But in a fiery ruling, the judge dismissed the EPA’s reasonable argument as “magical thinking.”

To Lazarus, though, it is the judge’s reasoning that is strained. As he explains:

The court stumbles in applying both of the two steps announced in Chevron v. NRDC?for judicial review of an agency construction of statutory language. And the court’s claim that EPA’s logic “doesn’t exactly leap off the page” might have been better directed at itself.

On Chevron Step One, which inquires whether there is a controlling plain meaning of the statute, the judge maintains two wholly contradictory positions. The first is that the plain meaning of the statutory language supports “deem[ing] EPA’s action to be unlawful without venturing beyond the first step of analysis called for by Chevron.” The second is that “it is undeniable that the provision is awkwardly written and extremely unclear.” It is very hard to grasp how a provision that the court characterizes as “undeniable[y]” “extremely unclear” nonetheless has plain meaning.

The judge also fell short in her application of Chevron Step Two, Lazarus wrote, because she found EPA was not entitled to the full scope of Chevron deference, but only “some deference” because EPA and the Corps share responsibility for administering Section 404. But, as Lazarus explained, the U.S. Attorney General issued a formal opinion declaring that the EPA had “final authority to construe” Section 404.

Lazarus ?contends that the judge overstepped the bounds of her inquiry by confusing the issue of whether EPA’s interpretation of Section 404(c) is reasonable with whether an after-the-fact veto itself is reasonable policy. “The court’s role is limited to discerning whether the agency’s construction is a reasonable interpretation of the words Congress used,” Lazarus wrote. “And EPA’s interpretation here of the legal significance of words like ‘withdrawal’ and ‘whenever’ should have easily satisfied that test.”

EPA’s decision to appeal this ruling?was the right one.

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