A federal court has sent back (vacated and remanded, in regulatory-speak) to the Bush administration a rule aimed to limit government reimbursement for Medicaid providers. The rule is one of several the administration is attempting to codify in an effort to undermine the entire Medicaid program.

The process by which the Centers for Medicare and Medicaid Services finalized the rule was particularly sneaky, even by Bush administration standards. A New York Times editorial explains:

In a decision issued last week, Judge James Robertson of the Federal District Court in Washington ruled that the administration had overstepped its authority last year with a maneuver "deliberately designed to outfox a clear directive of Congress." The administration was seeking to evade the annoying fact that Congress had enacted a one-year moratorium on the administration's efforts to alter — and in the process cut — Medicaid reimbursements to public hospitals and nursing homes.

Congress had already passed, but President Bush had not yet signed, a broad funding bill that included the moratorium when the secretary of the Department of Health and Human Services rushed through a typo-ridden rule for "emergency display" on May 25, 2007, the very day the moratorium took legal effect. The rule, which had been in preparation for some time, was officially published a few days later. That shifty maneuver was too much for Judge Robertson to swallow. He found ample reason to overturn the rushed-through rule as a violation of Congressional intent.

The ruling should serve as a reminder to Bush administration higher-ups that Congress, not the Executive Branch, is primarily responsible for crafting federal policy. The role of federal agencies is to faithfully enforce the law in the spirit Congress intended, not to undermine it based on personal views — in this case, an ideological aversion to government programs meant to help the needy.

In his opinion, Judge Robertson writes to that effect:

[T]he Secretary treated an act of Congress seeking to control the substantive rules of Medicaid reimbursement as an "emergency," and prioritized issuance of his own rule over Congress's plain intent to prohibit his actions ... Although administrative law has evolved to allow agencies significant leeway to fill in the interstices of broad congressional mandates … control over the substance of the rules that govern the nation has always remained with Congress first. The Executive must comply with the duly enacted commands of Congress.

Yesterday, Reg•Watch blogged about five environmental groups that are suing the Environmental Protection Agency over its new national air quality standards for ozone, or smog.

Turns out, pretty much everyone is happy with the new EPA rules. In addition to the environmental groups, 14 states announced they will sue EPA hoping for a standard even more protective of public health than the one EPA adopted.

One state, Mississippi, is also suing but is doing so in order to weaken the standard. A coalition of industry groups, including the National Association of Manufacturers, is also suing. According to BNA news service (subscription), "The Mississippi and industry lawsuits will likely challenge EPA's scientific underpinnings for setting the ozone standards, including how background ozone levels were modeled and how scientific studies were interpreted, one industry attorney familiar with the cases, but who asked not to be named, told BNA May 28 ."

Those suing in favor of a more protective standard will likely argue that the body of scientific evidence supports a stricter rule and will cite the Clean Air Act's clear directive that EPA protect the public within an "adequate margin of safety."

According to an EPA analysis, the new standard will prevent at least 260 premature deaths, 890 heart attacks, and 200,000 missed school days every year starting in 2020. Had EPA adopted a standard at the weakest end of the range recommended by its scientific advisors, an additional 300 premature deaths, 610 heart attacks, and 440,000 missed school days could be prevented every year.

The 14 states are New York, California, Connecticut, Delaware, Illinois, Massachusetts, Maryland, Maine, New Hampshire, New Jersey, New Mexico, Oregon, Pennsylvania and Rhode Island. The city of New York and Washington D.C. also joined the suit.

Yesterday, five environmental groups announced they will file suit against the Environmental Protection Agency over its recent revision to the national air quality standard for ozone, or smog.

Although EPA tightened the public health standard, also known as the primary standard, for ozone to 0.075 parts per million (ppm), down from 0.084 ppm, the agency did not go as far as its scientific advisors had recommended. EPA's Clean Air Science Advisory Committee recommended the standard be set somewhere between 0.060 ppm and 0.070 ppm. Other advisory committees and countless independent scientists also recommended a standard lower than the one adopted.

Because the Clean Air Act requires EPA to set the standard for ozone based solely on the best scientific evidence available, the decision to set the standard outside the recommended range puts the standard on shaky legal footing.

The public welfare standard, also known as the secondary standard, is on even shakier footing. EPA decided to set the secondary standard identical to the primary standard, instead of adopting a separate standard tailored for the summer months when ozone levels are at their highest.

The problem is, both EPA scientists, policymakers, and administrator Stephen Johnson wanted the summer standard because science shows that sensitive trees and plants could benefit. The White House Office of Management and Budget disagreed, and President Bush was brought in to arbitrate the dispute. Bush ultimately came down on the side of OMB.

Bush and OMB paid no mind to the Clean Air Act, which requires EPA set a standard to protect public welfare if necessary and which invests in the EPA administrator, not the president, the power to make clean air decisions. (More on that here.)

If the courts tell EPA they need to set a separate secondary standard, the decision will be a stinging rebuke to Bush's intervention and a forewarning to future presidents. We don't know why the White House opposed a separate secondary standard. Maybe it was funneling the concerns of industry. Maybe it was exercising its ideological opposition to environmental regulation. Maybe neither. Maybe both.

Regardless of the rationale, a decision in favor of a separate standard will send a clear message for this and other rulemakings: A president's personal views do not trump the plain language of federal law.

The organizations filing the suit are the American Lung Association, Natural Resources Defense Council, Environmental Defense Fund, National Parks Conservation Association, and Appalachian Mountain Club. They will be represented by Earthjustice, a nonprofit, environmental law firm.