A coalition of business groups, including the National Association of Manufacturers, have filed a request to block the effectiveness of EPA’s climate change rulemaking. The business groups have filed a motion seeking a stay of the effectiveness of EPA regulations that will soon require stationary sources (factories, utilities and boilers) to reduce greenhouse gas (GHGs) emissions from those sources beginning in 2011.
There are two interesting strategic decisions that emerge from the brief filed seeking a stay of EPA’s GHG rules:
- Business groups are not trying to block the mandatory GHG rules pertaining to motor vehicles; and
- The stay would not be of EPA’s Tailoring Rule, but would seek to block any legal ability to begin regulating GHGs from stationary sources
The Clean Air Act requires all sources emitting above 100/250 tons per year of a regulated pollutant to go through federal permitting- EPA’s New Source Review Program. EPA adopted the Tailoring Rule to raise those thresholds that EPA asserts would otherwise apply once it finalized its regulation of GHGs from vehicles.
It is the premise that the vehicle rules trigger regulation of stationary sources that the business groups are challenging in this motion. This from the brief filed seeking a stay:
Movants offer a distinct request for a partial stay that would enable EPA to
realize its goal of imposing GHG emission limits on cars while preserving the status quo for stationary sources. Specifically, Movants request the Court stay the effects of the Tailpipe Rule, Tailoring Rule, and PSD Interpretive Rule on stationary sources, such that GHG emissions are not subject to PSD and Title V pending this appeal. Movants do not request a stay of the Tailpipe Rule as applied to cars.
Business groups challenge EPA assertion on two separate grounds:
Emissions of a pollutant triggers PSD permitting if, and only if, the pollutant is subject to a NAAQS and the source is located in an attainment area for that pollutant. GHGs are not such a pollutant, so GHG emissions alone cannot trigger PSD permitting.
The very impetus for the Tailoring Rule’s revision of statutory thresholds was EPA’s recognition that requiring sources to obtain PSD permits solely based on GHG emissions is “absurd” and inconsistent with Congress’s vision for the PSD program. Congress did not enact the CAA to bring any part of the American economy to a dead stop, and EPA’s interpretation of the CAA threatening that result is unreasonable, arbitrary, and capricious. In addition, EPA’s view that GHGs are subject to regulation under the PSD program—which is plainly focused on local air quality—is unreasonable. Congress never intended the PSD program to regulate pollutants like GHGs.
Business groups had no alternative but to seek a stay given the ramifications of EPA embarking on this regulatory path. Typically, you would ask to stay the effectiveness of a specific rule. However, delaying the legal effectiveness of the Tailoring Rule would arguably subject all businesses to the ridiculously low permitting thresholds 100/250 tons in the Clean Air Act.
As result, business group are challenge the very premise the EPA had to enact the Tailoring Rule because otherwise the 100/250 ton thresholds would take effect after enactment of the vehicle tailpipe rule.
The only concern is if the Court agrees, in part, with the business group’s arguments. First, the Court may say a stay can only be granted of a specific rule. Second, the Court may agree EPA went too far but provide a different result.
Let’s remember no one was asking the Court to throw out the Clean Air Interstate Rule (CAIR). What happens if the Court agrees EPA has no authority to change the statutory thresholds in the Clean Air Act (100/250 tons per year), but agrees the vehicle rule automatically triggers PSD regulation of GHGs?
While litigation is necessary with so much at stake, it is also very unpredictable. Let’s hope the Court gets this one right by looking at the real world implications of its decision.