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Federal Court Upholds EPA’s Greenhouse Gas Rules

06/27/12

Source: SOCMA
Related Topics: Clean Air Act (as Amended)

Yesterday, in a major legal victory for EPA, a federal court unanimously upheld EPA’s greenhouse gas (GHG)  vehicle and permitting rules.  Significantly, the court rejected the argument put forth by industry and other critics of the rules that EPA’s endangerment finding (that GHG endanger public health and welfare) was arbitrary and capricious.  The endangerment finding is the basis of EPA’s claim that it has the authority to regulate GHG  under the Clean Act, following a 2007 Supreme Court decision on the issue. 

Furthermore, the court rejected all challenges to the GHG “Tailoring rule,” stating that the challengers to the rule could not prove they were injured by it ((since the Tailoring rule was designed to reduce the number of sources subject to permits) and thus did not have legal “standing” to challenge the rule.  Throughout this fight, the tailoring rule was thought to be the most vulnerable to legal challenge since EPA raised the thresholds which were already set in the law (100 or 250 tons per year for triggering air permits).  The court did not reject EPA’s legal justification for the rule – that the original low thresholds would have generated “absurd results” by triggering permits for millions of sources that Congress never intended to regulate.  Additionally, EPA argued that changing the thresholds was an “administrative necessity” since permitting agencies would otherwise be overwhelmed by the number of permits required. 

The court did not actually rule on the merits of the tailoring rule, though, stating that it lacked jurisdiction to do so because critics had not demonstrated standing. 

Next Steps

Critics of the rules now have two legal options.  They can appeal the ruling to the full Circuit Court (the decision yesterday was made by a 3-judge panel of that court) or immediately seek Supreme Court review.  Neither option seems promising – the Circuit Court seems unlikely to grant a rehearing of the case since it rarely does so, especially when the initial decision was unanimous as it was yesterday.  Similarly, it doesn’t seem likely that the Supreme Court will  hear the case since the court still retains the 5-4 ideological balance (with the same swing vote in Justice Kennedy) which made the 5-4 decision in the greenhouse gas case initially. 

Legal efforts may very well still be made, but critics of the rule will likely renew their push (at least rhetorically) in Congress to pass legislation to strip EPA of its authority to regulate GHG under the Clean Air Act.  (The House of Representatives passed legislation last year which strips EPA of that authority but that legislative language was rejected in the Senate at the same time.)  There is no evidence whatsoever to suggest that these provisions will be able to pass the Senate this year either, since the makeup of the Senate has not changed.  While Republicans in particular may very well try to draw attention to this issue during this election year, concrete legislative action will likely not happen until 2013 at the earliest.







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