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Courts
Q: How did EPA relate to the Judiciary?
MR. COSTLE: On balance this relationship was very positive. Courts generally sustained our actions and our efforts to implement the law. There was a negative aspect in that court decisions could undermine our resource allocation process. Court rulings often reordered priorities. We would have to shift resources to respond to court orders, lest we be held in contempt. While this could be a negative, it was also really a sign that the Agency was understaffed, its resources not adequate.
The tougher question is whether you ever can have adequate resources. EPA's mission is difficult under the best of circumstances, but the Agency clearly couldn't do everything that Congress had told it to do in the time in which Congress told it to. We often felt that we were just one step ahead of the judge. We were always being sued. I often worried about the possibility of a contempt citation, particularly where rulemaking was constantly delayed, as in the case of many of the RCRA rules. There the judge was on the verge of telling the Agency how to spend its money, and at the same time OMB was trying to cut the amount we could spend. Our General Counsel, Jodie Bernstein, time and again got us out of jams on timing issues. The truth is, we just had more to do than we had resources or time to do -- and do well.
One step we did take to become more focused and produce better products in a more timely way was to set up the regulatory calendar I already mentioned, to show us what was emerging up to three years ahead of time. This allowed me to decide where I wanted to opt in, so that the Administrator's office wouldn't be at the tail end of the rulemaking process. Being able to look ahead like this also gave us a timely way to look at regulatory alternatives. Initially, we weren't anywhere near the level of sophistication to talk in terms of a regulatory budget. But at least we had a more reliable way of seeing what was coming, instead of waiting until the truck driver hit the horn just before we felt the impact.
Q: I've heard of EPA employees leaking information to the environmental community so that that community could sue EPA, thus helping the Agency get what it wanted, e.g., from the Hill or within the administration. Is that a fair characterization of some things that went on?
MR. COSTLE: I'm sure it happened. I think it is probably equally true of information leaked to industry. You could never keep a secret at EPA, and it wasn't worth trying. But I made it clear I never wanted to catch anybody at it. By the same token, it was a waste of time trying to stop all that. We assumed that we were going to be sued by both sides, no matter what. Perhaps such leaks gave some groups a heads-up as to what was coming. But I don't think we ever got into any trouble that we wouldn't have been in anyway.
Q: What were the most significant judicial influences on the Agency?
MR. COSTLE: The D.C. Circuit Court of Appeals, which had initial jurisdiction over much of the rulemaking, was certainly one. But overall the courts really did vindicate most of the Agency's actions. We had a very good track record in terms of the quality of the cases we argued, the quality of the appeals, and the results.
We were in a position to hire the best and the brightest in the legal profession, and did. And while we had a first-rate legal team, ultimately the Department of Justice represented us. [Assistant Attorney General] Jim Moorman really built up the DOJ litigation capability. And in many cases, we were co-counsel, in effect. On appellate work, we played a major role in fashioning briefs. And the quality of our work made it much easier for DOJ to do its job.