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Mar 29, 2020
A popular Government, without popular information, or the means of acquiring it, is but a Prologue to a Farce or a Tragedy; or, perhaps both.
Waterkeeper v. EPA represents a limited victory for advocates of reporting requirements. In this case, the court held that the Environmental Protection Agency could not exempt farms from air pollution reporting requirements based on the use of the de minimis doctrine, which allows for exemptions from regulations to avoid trifling matters. Prior to this case, in most environmental cases involving the de minimis doctrine, courts have upheld agency use of the doctrine unless a court finds that the statutory language is “extraordinarily rigid” and therefore does not permit this interpretative tool. Here, however, while the majority did not uphold the agency action, the decision also omitted any discussion whatsoever of whether the statutory language of either the Comprehensive Environmental Response, Compensation, and Liability Act or the Emergency Planning and Community Right-to-Know Act was so “extraordinarily rigid” as to preclude de minimis exemptions. This therefore weakens the precedential value of the decision for advocates in similar future cases, because it leaves the door open for the possible use of the de minimis doctrine to avoid regulatory responsibilities. However, advocates can overcome this precedential weakness in two ways. First, advocates can highlight the environmental justice benefits of reporting requirements to communities, the government, and businesses. This will greatly reduce the probability that a given reporting requirement will “yield a gain of trivial or no value.” Second, advocates can emphasize the fact that it is unnecessary for the Environmental Protection Agency to invoke its de minimis authority to shield small business owners from reporting requirements, since it can use its prosecutorial discretion to do so. Thus, advocates of reporting requirements have several tools in their “toolbox” if agencies attempt to use the de minimis doctrine to justify similar exemptions in the future.