OSHA Wins More Legal Battles Than EPA

Federal agencies, such as OSHA, win most of the court cases filed\r\nagainst their regulatory actions in federal appeals courts, but not\r\nEPA, according to a report.

Federal agencies, such as OSHA, win most of the court cases filed against their regulatory actions in federal appeals courts, but not the Environmental Protection Agency (EPA).

According to a report by the Reason Public Policy Institute (RPPI), over the past seven years, EPA has succeeded only one-third of the time in federal court with primary jurisdiction over environmental regulatory challenges.

The study by Jonathan Adler, "Environmental Performance at the Bench: The EPA''s Record in Federal Court," was released on May 22.

RPPI publishes analyses of environmental, educational and other public policy issues. Adler is an attorney with the Competitive Enterprise Institute, a nonprofit organization.

The report analyzed 69 challenges brought against EPA regulations in the U.S. Court of Appeals for the District of Columbia Circuit.

Adler found that although this circuit court is difficult for all federal agencies, other agencies still win a majority of the time -- far more than EPA''s 33 percent success rate.

Adler said this poor performance is surprising, given the tendency of courts to defer to agency decisions.

"Courts historically defer to the judgment of federal agencies and only intervene for very specific reasons," noted Adler. "With EPA in recent years, we see a different picture. More than half of the time, the courts have overridden the agency''s actions."

The RPPI report points out that the courts strike down regulations for three primary reasons -- the regulation is unlawful, the regulation is arbitrary and capricious, or the regulation was not issued in accordance with procedural compliance.

"Several EPA losses are quite significant in terms of environmental policy and raise serious questions about the rigorousness of the agency''s policy evaluation and development, as well as the agency''s recent priorities an policies," said Adler.

In contrast, OSHA has a much better record in court. Like EPA''s, OSHA''s deliberations and rulemakings, can be highly technical, costly, and controversial, Adler said, but OSHA "has only lost a handful of cases in which a substantive OSHA rulemaking was challenged."

Adler argued that EPA''s record of legal defeats does not suggest an anti-environmental judiciary.

He believes rather, that this record reveals the need for fundamental reform in the way EPA is managed and how it develops regulations.

Specifically, the study suggested that Congress expand its legislative oversight of the agency and improve the drafting of legislative language to ensure clarity.

"EPA has shown it deserves less deference than agencies typically receive. The courts need to continue to keep the agency''s feet to the fire and ensure that only lawful, well-articulated regulations are developed," said Adler. "Ideally, this added security will manifest itself in a disciplined, accountable EPA."

Copies of the study are available at the RPPI Web site at www.rppi.org/ps269central.html.

by Virginia Sutcliffe

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