Tuesday, June 26, 2012

Appeals Court Rules Unanimously In Favor Of EPA GHG Regulations

Jun 26: Coalition for Responsible Regulation v. U.S. EPA; American Chemistry Council v. U.S. EPA; and various intervenors including the State of Michigan, et al. In the U.S. Court of Appeals, D.C. Circuit, Case No. 09-1322, consolidated with a number of cases. On Petitions for Review of Final Actions of the Environmental Protection Agency. And, consolidated with dozens of cases and involving hundreds of attorneys. This is a highly controversial, complicated and critically important decision regarding U.S. EPA's ability to regulate greenhouse gases under the Clean Air Act. A unanimous Appeals Court has provided an complete ruling in support of U.S. EPA and Administration.
    The Appeals Court outlines the history as follows: Following the Supreme Court's decision in Massachusetts v. EPA, 549 U.S. 497 (2007) -- which clarified that greenhouse gases are an "air pollutant" subject to regulation under the Clean Air Act (CAA) -- U.S. EPA promulgated a series of greenhouse gas-related rules. First, EPA issued an Endangerment Finding, in which it
determined that greenhouse gases may "reasonably be anticipated to endanger public health or welfare." See 42 U.S.C. § 7521(a)(1). Next, it issued the Tailpipe Rule, which set emission standards for cars and light trucks. Finally, EPA determined that the CAA requires major stationary sources of greenhouse gases to obtain construction and operating permits. But because immediate regulation of all such sources would result in overwhelming permitting burdens on permitting authorities and sources, EPA issued the Timing and Tailoring Rules, in which it determined that only the largest stationary sources would initially be subject to permitting requirements.
    Petitioners, various states and industry groups, challenge all these rules, arguing that they are based on improper constructions of the CAA and are otherwise arbitrary and capricious. The Appeals Court rules, "But for the reasons set forth below, we conclude: (1) the Endangerment Finding and Tailpipe Rule are neither arbitrary nor capricious; (2) EPA's interpretation of the governing CAA provisions is unambiguously correct; and (3) no petitioner has standing to challenge the Timing and Tailoring Rules. We thus dismiss for lack of jurisdiction all petitions for review of the Timing and Tailoring Rules, and deny the remainder of the petitions."
    The Appeals Court explains the organization of the seven part, 82-page decision saying, "This opinion proceeds in several steps. Part II explains why the Endangerment Finding was neither arbitrary nor capricious, while Part III does the same for the Tailpipe Rule. Turning to stationary source regulation, Part IV examines whether any petitioners may timely challenge EPA's longstanding interpretation of the PSD statute. Because we conclude that they may, Part V addresses the merits of their statutory arguments, and explains why EPA's interpretation of the CAA was compelled by the statute. Next, Part VI explains why petitioners lack standing to challenge the Timing and Tailoring Rules themselves. Finally, Part VII disposes of several arguments that have nothing to do with the rules under review, and thus are not properly before us."
    On the issue of the scientific basis for the endangerment finding, the Appeals Court said in part, "State and Industry Petitioners next challenge the adequacy of the scientific record underlying the Endangerment Finding, objecting to both the type of evidence upon which EPA relied and EPA's decision to make an Endangerment Finding in light of what Industry Petitioners view as significant scientific uncertainty. Neither objection has merit. . . Based on this scientific record, EPA made the linchpin finding: in its judgment, the 'root cause' of the recently observed climate change is 'very likely' the observed increase in anthropogenic greenhouse gas emissions. . . EPA had before it substantial record evidence that anthropogenic emissions of greenhouse gases 'very likely' caused warming of the climate over the last several decades. . ."
    On the subject of the Endangerment Finding being arbitrary and capricious and "just a "subjective conviction" of EPA, the Appeals Court said in part, "EPA relied on a substantial record of empirical data and scientific evidence, making many specific and often quantitative findings regarding the impacts of greenhouse gases on climate change and the effects of climate change on public health and welfare. Its failure to distill this ocean of evidence into a specific number at which greenhouse gases cause "dangerous" climate change is a function of the precautionary thrust of the CAA and the multivariate and sometimes uncertain nature of climate science, not a sign of arbitrary or capricious decision-making."
    On the subject of standing, the Appeals Court summarizes the arguments and its ruling as follows: "Petitioners fall far short of these 'irreducible constitutional . . . elements' of standing, id. at 560. Simply put, Petitioners have failed to establish that the Timing and Tailoring Rules caused them 'injury in fact,' much less injury that could be redressed by the Rules' vacatur. Industry Petitioners contend that they are injured because they are subject to regulation of greenhouse gases, Coalition for Responsible Reg. Timing & Tailoring Br. 14. State Petitioners claim injury because they own some regulated sources and because they now carry a heavier administrative burden. State Pet'rs' Timing & Tailoring Br. 22–23. But as discussed above, see supra Part V, the CAA mandates PSD and Title V coverage for major emitters of greenhouse gases. Thus, Industry Petitioners were regulated and State Petitioners required to issue permits not because of anything EPA did in the Timing and Tailoring Rules, but by
automatic operation of the statute. Given this, neither the Timing nor Tailoring Rules caused the injury Petitioners allege: having to comply with PSD and Title V for greenhouse gases."
    Senator Barbara Boxer (D-CA), Chairman of the Environment and Public Works Committee, issued a brief statement saying, "The Appeals Court's decision to unambiguously affirm EPA's clean air efforts to reduce dangerous carbon pollution is a big victory for the health of the American people."
    Representative Ed Markey (D-MA.), Ranking Member on the House Natural Resources Committee and a senior member of the Energy and Commerce Committee, released a statement saying, "Today's ruling is a grand slam for the EPA and the health of the American people, and another strikeout for the fossil fuel special interests trying to block clean energy progress. The DC Appeals Court now joins the Supreme Court in saying that climate science is sound and the EPA has the authority to regulate dangerous heat-trapping emissions under the Clean Air Act. Three years ago today, the House passed the Waxman-Markey climate and clean energy bill, and the problems addressed by that legislation remain with us today. With the science affirmed and the authority granted, EPA should continue their important work to address the greatest challenge of our generation in dealing with global warming. At the same time, Congressional Republicans should stop denying the science and start working with Democrats to craft more comprehensive and bipartisan responses to the threat posed by global warming."
    Sierra Club issued a release on the decision calling it "a sweeping victory for public health and clean air." Michael Brune, executive director of the Sierra Club said, "Today's decision is a huge victory for American families and everyone concerned about protecting the air we breathe and the health of our children. The role of the Clean Air Act in protecting our families from dangerous carbon pollution and climate disruption should never have been in doubt, and this decision is a big step forward in putting the well-being of Americans before the boundless profits of big polluters. Carbon pollution is dangerous to our planet and our health. The Environmental Protection Agency has the right and the duty to keep our communities healthy and now the path is clear for them to curb this dangerous pollution, which threatens our families and planet. We applaud the court's decision and stand with the EPA as they continue to fight for the health of American families."
    Fred Krupp, President of Environmental Defense Fund (EDF) said, "Today's ruling by the court confirms that EPA's common sense solutions to address climate pollution are firmly anchored in science and law. This landmark decision will help secure a healthier and more prosperous future for all Americans. Today is a good day for climate progress in America and for the thin layer of atmosphere that sustains life on Earth." EDF's outside legal counsel Sean Donahue, who presented oral arguments to the court in defense of these protections said, "EPA's reasonable steps to reduce climate pollution will benefit our environment, our economy, our health and our national security. Today's court ruling will help our country move forward toward a clean energy future."
    [Note: No immediate reaction to the ruling was available from industry or state government participants at press time.]
    Access the complete opinion (click here). Access the statement from Sen. Boxer (click here). Access the statement from Rep. Markey (click here). Access a release from Sierra Club (click here). Access the statement from EDF (click here). [#Climate, #Air, #MIAir, #MIClimate]
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