In reference to a number of reader inquiries regarding Tozzi v HHS we offer the following:
Tozzi v HHS resulted in three key decisions:
(1) The plaintiff need not demonstrate direct causation; instead they can suffer harm through indirect causation, and
(2) The issuance of a standalone report can be a final agency action and thus judicially reviewable, and
(3) An extremely strong statement on the deference to be accorded to agency interpretations of its own regulations.
(On March 9, 2015 in the Ninth Circuit in the case W. Harkonen v. USDOJ the Department of Justice announced that although the DQA does not give members of the public the right for judicial review of agency denials of Requests for Correction it does provide the public with the right to seek such relief from OMB. The Department explained that the DQA is “policed” by OMB — not by the courts; DOJ went on to state that OMB has the right to “take action” if agencies are not living up to their DQA duties.
More specifically DOJ stated to the Court:
Over a period to several years CRE has conducted an extensive public outreach program to develop a science based program for addressing emissions from new coal fired plants. See the CRE Option.
From: Inside EPA
Dawn Reeves
As EPA considers whether to require new coal plants to install partial carbon capture and sequestration (CCS), critics and supporters are offering different options for how the agency can drop the requirement without abandoning its effort to regulate greenhouse gases (GHGs) at new power plants.
For example, the Center for Regulatory Effectiveness (CRE), a group that charges that the CCS mandate is unlawful because it violates the Data Quality Act (DQA), is suggesting in an options paper that EPA issue an “interim” rule that sets a standard for new coal plants that is just shy of CCS, while conducting a peer review on the state of carbon capture technology.
This morning, March 9, 2015 in the Ninth Circuit in the case W. Harkonen v. USDOJ the Department of Justice stated that although the DQA does not give members of the public the right for judicial review of agency denials of Requests for Correction it does provide the public with the right to seek such relief from OMB. The Department explained to the judges that the DQA is “policed is through OMB”–not through the courts; therefore they went on to state that OMB has the right to “take action” if agencies are not living up to their DQA duties.
Over a period of several years CRE has conducted an extensive public outreach program to develop a science based program for addressing emissions from new coal fired plants. See the CRE Option.
Also see this post regarding OMB’s authority to resolve this matter.
CRE has under preparation a draft complaint which could be filed if EPA proceeds to issue a final rule without addressing its responsibilities to comply with the peer review requirements of the DQA.
From: Inside EPA
Dawn Reeves
As EPA considers whether to require new coal plants to install partial carbon capture and sequestration (CCS), critics and supporters are offering different options for how the agency can drop the requirement without abandoning its effort to regulate greenhouse gases (GHGs) at new power plants.
For example, the Center for Regulatory Effectiveness (CRE), a group that charges that the CCS mandate is unlawful because it violates the Data Quality Act (DQA), is suggesting in an options paper that EPA issue an “interim” rule that sets a standard for new coal plants that is just shy of CCS, while conducting a peer review on the state of carbon capture technology.
Editor’s Note: Early last year CRE advised EPA that the imposition of the CCS requirement was a violation of the Data Quality Act. EPA responded stating that when the final rule was issued it was certain to comply with the DQA.
From: Inside EPA
EPA is analyzing scenarios that would drop its contentious carbon capture and sequestration (CCS) mandate for new coal-fired power plants under its proposed greenhouse gas (GHG) standards for new power plants, amid growing agency concern that the rule is legally vulnerable because the technology may not be “adequately demonstrated” as the Clean Air Act requires since most of the demonstration projects cited in the proposal are stymied.