In perhaps the biggest environmental decision in decades, the D.C. Circuit Court of Appeals upheld all aspects of EPA's complex regulation of greenhouse gases under the Clean Air Act. Each piece of EPA regulation was controversial, yet the Court validated the overall approach paving the way for future action by EPA.
Flashback several years ago, when the Obama Administration stated its preference was to enact cap-and-trade legislation to address climate change. The Administration it preferred Congressional action rather than using the authority under the Clean Air Act which it saw as ill-suited for regulation of GHGs. In an attempt to encourage a reluctant Congress to act on the controversial legislation, EPA threatened that it would proceed with enacting regulations under its existing Clean Air Act authority.
Congressional efforts to pass cap-and-trade failed, while EPA continued to march forward with regulations. Like a series of dominoes, once the initial regulations were promulgated successive regulation followed capturing more sources. Here is a brief re-cap of EPA's actions:
- Endangerment Finding- before regulating greenhouse gases (GHGs) from motor vehicles, the Supreme Court told EPA in Massachusetts v. EPA that the Agency must first determine whether GHG emissions "endanger public health;"
- Tailpipe Rule- After making the determination GHG motor vehicle emissions did endanger public health, EPA enacted standards for emissions from motor vehicles under the Tailpipe rule;
- "Regulated Pollutant"- Under the CAA's structure, once a pollutant becomes "regulated" from any source, stationary sources must comply with New Source Review (NSR) requirements. The CAA establishes a permitting threshold of 100/250 tons per year for any "regulated pollutant." EPA issued the "timing rule" to clarify that GHGs from factories and other so called "stationary sources" would be covered by NSR once the Tailpipe standards were effective.
- Tailoring Rule- EPA determined that automatic application of the 100/250 ton threshold for stationary sources would overwhelm regulatory agencies, The Agency estimated federal permit applications would jump from 280 per year to 81,000 per year. To soften the blow of inclusion of GHG emissions in NSR permitting, EPA enacted the Tailoring Rule. Through the rule, EPA temporarily raised the permitting trigger thresholds from the CAA 100/250 tons up to 75,000 tons per year.
Industry and some States filed challenges to each of the rules discussed above. The Court consolidated those challenges and on June 26th, the D.C. Circuit issued its opinion in Coalition for Responsible Regulation, Inc. v. EPA, No. 09-1322 (D.C. Cir. June 26, 2012). The Court rejected all of the Coalition's challenges to each of the EPA rules.
While an appeal to the Supreme Court is likely, the D.C. Circuit often cited to the Supreme Court's decision in Massachusetts v. EPA to support upholding the EPA rules. Therefore, it is quite possible the Supreme Court will reject a petition to hear an appeal.
Notable Findings of the D.C. Circuit
The importance of Court's decision cannot be overstated. The most fundamental finding was the Court upheld every aspect of EPA's overall regulatory strategy for GHGs. Here are some other key findings of the Court:
- Science v. Policy- The Court said that EPA's was directed by the CAA to make its Endangerment finding based purely on science, not policy. Petitioners wanted EPA to consider other factors, such as: implications on the economy; whether GHG regulation would be effective in mitigating climate change; and whether society would simply adapt to climate change. The Court held EPA was limited to making a determination as to whether GHGs from motor vehicles endanger public health and welfare based purely upon science. The Court noted that EPA relied upon reviews of some 18,000 peer reviewed scientific studies in concluding GHG emissions do endanger public health.
- Precautionary Principle- The Petitioners challenged EPA's Endangerment Finding because it did not specifically determine the level of atmospheric concentration of GHGs that endanger public health (i.e. the safe levels of GHGs). The Court found the CAA is "precautionary and preventive" in nature. In other words, EPA need not establish with certainty that climate change is occurring and will cause specific harms. EPA only needed to find that the scientific evidence show its reasonable to anticipate dangers to public health if GHGs are not controlled.
- Those Who Benefit from Reduced Regulation Don't Have Standing to Challenge the Reduction- Of all the EPA climate change rule-making, the Tailoring Rule seemed to be the most susceptible to legal challenge. EPA, in essence, re-wrote a statue through rule-making. This is typically not a power granted the executive over the legislative branch of government. Perhaps to avoid confronting the issue, the Court held the petitioners had no standing to challenge the relaxation of the 100/250 ton per year permitting threshold in the Tailoring Rule because petitioners only benefit from the rule. The Court questioned why Petitioners would want the rule struck down triggering thousands of federal permits.
- Court Says Congressional Action Unlikely- In commentary, the Court said it hat "serious doubts" that Congress will ever enact legislation addressing Climate Change.
If the decision stands, it paves the way for EPA to proceed with stricter regulation using its existing CAA authority. EPA could proceed without any Congressional action.
Even though EPA's Tailoring Rule was upheld, the Agency will be forced to slowly ratchet down over time the permitting threshold. Unless Congress acts, EPA will be forced to require permits from more and more sources, including smaller commercial buildings.
EPA is also likely to follow with additional GHG regulations. EPA will likely adopt new GHG emission threshold standards for major source categories. It is even possible that EPA will implement National Ambient Air Quality Standards (NAAQS) for regulation of GHGs. Use of the NAAQS could force each of the states to adopt there own GHG regulations on sources.
While EPA marches forward with complex GHG regulations, as things stand, it appears the Court is right in its prediction that Congress will not take action. Any sort of cap and trade bill appears dead. With the division between Republicans and Democrats over the issue, it appears Congressional reform of the CAA to better fit GHG regulation is highly unlikely.