The EPA Held to the Same Evidentiary Standards as Petitioners

Jun 26, 2018

Washington, D.C., court finds EPA ruling is arbitrary and capricious

For many years federal courts have given the Environmental Protection Agency the benefit of the doubt in appeal cases.

A recent article by Seth Jaffe in Law and demonstrates that there are, however, limits to the leeway courts will provide the EPA.

Last month “the D.C. Circuit Court of Appeals vacated the EPA’s rule … adding the West Vermont Drinking Water Contamination Site to the National Priorities List, finding EPA’s decision arbitrary and capricious and not supported by substantial evidence.”

This is noteworthy because the D.C. Court of Appeals is traditionally one of the more liberal courts in the country and seldom overrules the Agency’s rule-making mandate. Mr. Jaffe notes that “the opinion makes clear, EPA has to work pretty hard to lose these cases.”

“The critical issue was whether the overburden and bedrock aquifers beneath the site were directly connected.” In other words, did surface contaminants enter and pollute the subterranean water system beneath it?

The petitioners argued that a layer of “confining material” between the surface and the aquifers prevented the contaminants from reaching the water system, and presented soil cross-sections substantiating their position.

EPA presented no evidence to the contrary.

“The Court noted: ‘It was arbitrary and capricious for EPA to rely on portions of studies that support its position, while ignoring cross sections in those studies that do not … Although EPA is not required to discuss every item of fact or opinion included in the submissions it receives in response to a Notice of Proposed Rulemaking, it must respond to those comments which, if true, would require a change in the proposed rule.’”

This is a victory for those who assert that EPA is often cavalier and heavy-handed when dealing with petitioners.


Just How Arbitrary Does EPA Have to Be to Be Arbitrary and Capricious? (, Seth Jaffe, Law and, May 21, 2018.