PowerPoint

Topic: Litigating EPA Rules: A Fifty-Year Retrospective of Environmental Rulemaking in the Courts 

Abstract: Over the last fifty years, the U.S. Environmental Protection Agency (EPA) has found itself repeatedly defending its regulations before federal judges. The agency’s engagement with the federal judiciary has resulted in prominent Supreme Court decisions, such as Chevron v. NRDC and Massachusetts v. EPA, which have left a lasting imprint on federal administrative law. Such prominent litigation has also fostered, for many observers, a longstanding impression of an agency besieged by litigation. In particular, many lawyers and scholars have long believed that unhappy businesses or environmental groups challenge nearly every EPA rule in court. Although some empirical studies have questioned this prevailing belief, no one has yet provided a comprehensive account of litigation challenging EPA rules throughout the agency’s entire history. In this article, we first synthesize the existing disparate empirical studies, each drawn from different time periods, to show how collectively this research creates a picture in stark contrast with prevailing impressions of an EPA besieged by litigation. We also bring new data to bear, providing the first comprehensive empirical effort to track, across the last half-century, both levels of EPA rulemakings and court decisions involving the agency. What we find confirms previous studies in challenging conventional wisdom. EPA has incurred a fairly modest rate of judicial review and invalidation of its rules. Moreover, the variation we do observe over time occurs within a relatively small band, suggesting more continuity than change in litigation patterns over time. The agency appears, from its earliest days, to have quickly achieved a kind of equilibrium in its relationship with the courts. We conclude by suggesting that this outcome would be expected from professional staff efforts within EPA to adapt to changes in the legal environment so as to manage litigation risk and insulate the agency from much judicial scrutiny. 

Bio: Edward B. Shils Professor of Law and Professor of Political Science; Director, Penn Program on Regulation 

Cary Coglianese specializes in the study of administrative law and regulatory processes, with an emphasis on the empirical evaluation of alternative processes and strategies and the role of public participation, technology, and business-government relations in policymaking. 

The author of more than 200 articles, book chapters, and essays on administrative law and regulatory policy, Coglianese’s recent book projects have included: Achieving Regulatory Excellence; Does Regulation Kill Jobs?; Regulatory Breakdown: The Crisis of Confidence in U.S. Regulation; Import Safety: Regulatory Governance in the Global Economy; and Regulation and Regulatory Processes. He has also recently written on climate change policy, public participation and transparency in federal rulemaking, the use of artificial intelligence by government agencies, voluntary environmental programs, and role of waivers and exemptions in regulatory law. 

The founding director of the Penn Program on Regulation, Coglianese previously served as Penn Law’s Deputy Dean for Academic Affairs. Prior to joining the Penn faculty, he spent a dozen years on the faculty at Harvard University’s John F. Kennedy School of Government where he founded and chaired the school’s Regulatory Policy Program and was an affiliated scholar at the Harvard Law School. He also has served as a visiting law professor at Stanford University and Vanderbilt University. 

A public member of the Administrative Conference of the United States (ACUS), a federal agency that develops recommendations for improving the administrative aspects of government, Coglianese currently serves as the Chair of ACUS’s Rulemaking Committee. He also has served as the chair and co-chair of several committees of the American Bar Association’s section on administrative law as well as a member of the section’s governing Council. 

At Penn, Coglianese teaches courses in administrative law, environmental law, regulatory law and policy, and policy analysis. The chair of Penn Law’s Government Service and Public Affairs Initiative, he is a faculty affiliate of Penn’s Kleinman Center for Energy Policy, the Wharton Risk Center, and the Quattrone Center for the Fair Administration of Justice. In addition, he serves as the faculty director for Penn Law’s executive education program on regulatory analysis and decision-making and teaches periodically in the Wharton School’s executive education program. 

He founded the Law & Society Association’s international collaborative research network on regulatory governance, served as a founding editor of the international peer-reviewed journal Regulation & Governance, and created and now advises the daily production of The Regulatory Review, a global online publication covering issues of administrative and regulatory law and policy. 

Currently the chair of a National Academy of Sciences committee studying implications for law and regulation of emerging trends in the maritime sector, Coglianese has served as a member of other Academy committees on performance-based regulation and on ways to improve federal inspections of offshore oil and gas development. He has also served on an Aspen Institute panel on energy governance. He has provided research and advice on various regulatory issues to the Alberta Energy Regulator (Canada), Environment Canada, the U.S. Department of Transportation, the U.S. Environmental Protection Agency, and the Organization of Economic Cooperation and Development (OECD). 

Profile:  

https://www.law.upenn.edu/_ingredients/templates/details/facultyprofiles.php?id=2302 

Publications: 

https://papers.ssrn.com/sol3/cf_dev/AbsByAuth.cfm?per_id=45817