NCPA - National Center for Policy Analysis

Reason Study Details EPA Losses In Court

May 26, 2000

As a general rule, courts will only strike down a regulation issued by a federal agency if the regulation is unlawful, is arbitrary and capricious or an abuse of discretion or was not issued in accordance with procedural requirements.

The Environmental Protection Agency (EPA) appears to be an exception to this general rule. Over the past seven years, the EPA has won only one-third of its cases before the U.S. Court of Appeals for the District of Columbia Circuit, where most challenges to its regulations are heard. The court has struck down EPA rules requiring the sale of electric cars in eastern states, mandating minimum ethanol content in reformulated gasoline and requiring state regulators to consult with federal wildlife agencies before approving Clean Water Act permits, among others. The EPA has lost many different types of cases, involving allegations of both excessive and insufficient regulation. An analysis of 69 cases before the court finds:

  • The EPA won only 23, or 33 percent of those in which the court considered the merits of the challenge.
  • In 54 percent of the cases, the D.C. Circuit struck down all or a substantial portion of the challenged rule.
  • In the remaining 13 percent of cases, the court dismissed the challenges or otherwise held the action to be unreviewable in federal court, and never considered the substance of the challenge to the EPA's rule.

By contrast, the Occupational Safety and Health Administration (OSHA), a controversial federal agency that also regulates highly complex matters, has not had the same difficulties defending against challenges to its regulations.

Source: Jonathan H. Adler, "Environmental Performance at the Bench: The EPA's Record in Federal Court," Policy Study No. 269, May 2000, Reason Public Policy Institute, 3415 S. Sepulveda Boulevard, Suite 400, Los Angeles, Calif. 90034, (310) 391-2245.


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