As reported in various newspapers, several states have moved forward with the next round of climate change litigation. The States have sued U.S. EPA arguing that the Agency illegally refused to regulate greenhouse gas emissions (GHG) from refineries.
Thelen’s Climate Law Update, had a recent post discussing the lawsuit:
New York, California and 10 other states launched the latest lawsuit this week in the U.S. Court of Appeals for the District of Columbia Circuit. Although the document itself was bare-bones, officials said it’s focused on the failure of the U.S. Environmental Protection Agency to adopt regulations known as New Source Performance Standards to control pollutants blamed for causing global warming.
Lawyers working for California Attorney General Jerry Brown told Climate Law Update the case would draw legal support from last year’s landmark Massachusetts v. EPA decision last year. In that ruling the Supreme Court held the EPA had the authority under the Clean Air Act to regulate greenhouse gases if it found they endangered human health or welfare.
So far, as Climate Law Update has reported, government officials have balked at such a move, calling the law "ill-suited" to controlling such emissions, and they have launched a lengthy effort to study the issue.
U.S. EPA pronounced that the Clean Air is "ill-suited" for regulation of GHGs when it issued its proposed rulemaking on regulation of greenhouse gases under the Act. U.S. EPA’s rulemaking is an analysis of the whether and how GHGs could be effectively controlled under the Clean Air Act.
In U.S. EPA’s latest action, refusal to regulate GHG emissions under the NSPS (new source performance standards), U.S. EPA asserted:
- The Clean Air Act does not mandate U.S. EPA regulate GHGs under the standard
- The Agency should be allowed to proceed with a more deliberate and thoughtful process in developing greenhouse gas regulations, then simply incorporating regulations as it develops source specific rules
- Regulating GHG under NSPS could require the Agency to develop regulations for other categories of sources and under several other parts of the Act.
While U.S. EPA may prefer a more deliberative process and a comprehensive approach, it does not prevent Courts from interpreting the Act to require regulation and force application on a case by case basis. As an example, we have already had one Court determine the Clean Air requires analysis of greenhouse gases during the permit process.
There is no doubt the wave of climate change litigation has not even crested. It is also certain that the Clean Air Act structure does not mesh well with regulation of greenhouse gases. In fact, some of the most complicated provisions in the Clean Air Act, such as New Source Review, are overly complicated when applied to criteria pollutants (SO2, NOx, PM) However, as long as Congress and U.S. EPA delay comprehensive action on climate change, we are likely to construct climate change regulation by default and in piecemeal fashion.