States: EPA Delay "Fails the Rule of Reason"

Dow Jones Newswires is the first mainstream media outlet to report on the mandamus petition filed today by the plaintiffs from Mass. v. EPA, and gets some initial reaction from the EPA. Not from Administrator Stephen Johnson, mind you-- he's busy kicking off an Australian trip that will eat up half the agency's annual travel budget and seems to be of questionable origins, and ducking more outright calls for his resignation. But a spokesman did respond, via email, to the filing:

While the nation's highest court issued no deadline for the EPA to rule on endangerment, it said the EPA couldn't legally delay its decision without good reason.

EPA spokesman Jonathan Shradar said the agency would review and respond appropriately to any action. "It is important to remember that the court gave no specific direction on action and no specific timeline in its ruling," he said in an email.

In their petition, the plaintiffs anticipate and rebut this line of argument, which fails to address the aforementioned reality that EPA's options are strongly restricted. Their argument centers on the reality-- documented by EPA's statements and actions between the Supreme Court's decision and a formal "regulatory plan" published in the Federal Register on December 10, 2007, and backed up by Rep. Waxman's investigative findings-- that EPA has already gone through the statutory process needed to find endangerment, forwarded such a finding to the White House and admitted to endangerment in denying California's vehicle emissions waiver, and lacks any other legitimate reason for holding things up. 

In fact, the petition eviscerates Administrator Johnson's dual reasons for inaction-- the enactment of an energy bill raising fuel economy standards in late December 2007, and the desire to look more into the implications of regulating CO2 under the Clean Air Act-- as rationales that "under the Supreme Court's decision...have no bearing on the endangerment determination-- a question that must be answered on the science." It labels this case a "textbook answer of unreasonable delay" under the DC Circuit's own precedents, noting on page 18 that any reasonable delay must demonstrate legitimate causes that are simply absent here:

Because EPA cannot show that any work or complex decision-making remains to be done with regard to the endangerment decision, EPA's delay fails the "rule of reason."  See In re American Rivers, 372 F.3d at 419 (finding agency delay unreasonable because "none of its reasons comports with the specific considerations outlined in TRAC" and because "a reasonable time for agency action is typically counted in weeks or months, not years.").

During a conference call this afternoon with members of the media, lead Sierra Club attorney David Bookbinder echoed this point, noting that EPA remains more than welcome to attempt the kind of broader Clean Air Act examination it first proposed in its 2001 response to Massachusetts' petition-- it just cannot legally substitute that process for its statutory requirements to issue the endangerment ruling. As mandamus requests tend to move rapidly, Bookbinder and his fellow petitioners are hoping to have a ruling from the DC Circuit within the next 60 to 90 days.