What matters to me today is: Your Regulatory Mandate Demonstrably Infeasible? So What?
What happens when a regulatory agency can demonstrate—exhaustively—that meeting a statutory or other mandate is infeasible?
According to the Ninth Circuit: that may not matter.
In Committee for a Better Arvin v. EPA, involving particulate-matter regulation in California’s San Joaquin Valley, the court reached a conclusion with implications well beyond air quality. Where Congress imposes a regulatory requirement without expressly providing an exception for infeasibility, an agency cannot simply create one.
What makes the decision remarkable is the record. California regulators did not casually claim that further reductions were impractical. EPA relied upon a 173-page, single-spaced feasibility analysis examining why additional measures could not achieve the targeted reductions. The Ninth Circuit considered the thoroughness of that work irrelevant. No matter how convincingly infeasibility was demonstrated, Congress had not expressly authorized a feasibility exception. End of inquiry.
There is an uncomfortable real-world consequence.
The regulated community increasingly confronts mandates that may be technologically or economically infeasible—and sometimes contradictory requirements imposed by different agencies pursuing different statutory objectives.
Yet Arvin tells us that proving impossibility does not necessarily provide an escape hatch. If the Legislature has mandated the destination without providing for infeasibility, regulators—and ultimately the regulated community—may remain obligated to get there.
As regulatory mandates multiply and continually evolve, Arvin vividly illustrates the all too frequently recurring quandary: What happens when the law commands what reality cannot deliver?
That’s what matters to me today in 250 words or less. What matters to you? I’d really like to know.