Tamar Hallerman
GHG Monitor
06/29/12
In a landmark ruling that handed a major victory to the Obama Administration and its climate policies, a federal appeals court this week upheld the Environmental Protection Agency’s determination that greenhouse gases are a danger to public health. The U.S. Court of Appeals for the District of Columbia unanimously ruled June 26 that the Agency was correct in promulgating rulemakings to limit greenhouse gas emissions from stationary sources and automobiles under the authority of the Clean Air Act. “EPA’s interpretation of the governing Clean Air Act provisions is unambiguously correct,” the three judge panel said in its 82-page order.
The ruling comes into response to legal challenges from states, industry and business groups that were combined into two days of oral arguments heard by the Court in February and considered in four separate parts. Most notably, petitioners challenged the validity of EPA’s December 2009 ‘endangerment finding,’ which determined that greenhouse gases are a danger to public health. That finding formed the regulatory bedrock for subsequent air quality standards affecting much of the country’s electricity generation fleet. Petitioners also questioned the agency’s tailpipe rule, which established emissions standards for cars and light trucks, as well as EPA’s Prevention of Significant Deterioration (PSD) permitting program for stationary sources, which establishes national ambient air quality standards for six pollutants. The coalition also challenged the agency’s so-called ‘tailoring rule,’ which seeks to shield smaller point sources of emissions like schools from being required to acquire permits.
Court: EPA ‘Neither Arbitrary Nor Capricious’
The petitioners argued that EPA was “arbitrary and capricious” when making its endangerment finding. They said EPA’s scientific assessment relied too heavily on data and reports from other groups, including the Intergovernmental Panel on Climate Change, U.S. Global Climate Research Program and the National Research Council, and did not adequately provide its own analysis. But the Court’s sharply-worded ruling said that EPA considered a “substantial” body of scientific evidence, all peer-reviewed, to make its determination and that the reports did not substitute for the agency’s judgment, but instead helped inform it. “This argument is little more than a semantic trick. EPA did not delegate, explicitly or otherwise, any decision-making to any of those entities,” the judges said. “EPA simply did here what it and other decisionmakers often must do to make a science-based judgment: it sought out and reviewed existing scientific evidence to determine whether a particular finding was warranted. It makes no difference that much of the scientific evidence in large part consisted of ‘syntheses’ of individual studies and research…This is how science works. EPA is not required to re-prove the existence of the atom every time it approaches a scientific question.” The Court said EPA had the authority to make the determination under the Supreme Court’s 2007 decision Massachusetts v. EPA, which clarified that greenhouse gases are air pollutants that could be subject to regulation under the Clean Air Act if the agency makes the determination that they are harmful to human health.
On the other three grounds, the Court ruled that EPA was “neither arbitrary nor capricious” in regards to its tailpipe rule and that none of the petitioners had standing to challenge the PSD or tailoring rules. “As an initial matter, we note that petitioners fail to make any real arguments against the timing rule,” the ruling says. “To be sure, at one point state petitioners contend that the timing rule constitutes an attempt ‘to extend the PSD and Title V permitting requirements to greenhouse gas emissions.’ This is plainly incorrect.”
Supporters Laud Decision
Supporters of EPA’s air quality regulations praised the decision. The Natural Resources Defense Council, one of the case’s interveners that filed a brief in support of EPA, called the ruling a “resounding victory for science, the rule of law and common sense.” “This is a huge victory for our children’s future. These rulings clear the way for EPA to keep moving forward under the Clean Air Act to limit carbon pollution from motor vehicles, new power plants and other big industrial sources,” David Doniger, senior attorney for NRDC’s Climate and Clean Air Program, said in a statement. Center for Climate and Energy Solutions President Eileen Claussen said the decision “reaffirms sensible science-based regulation.” “The ruling significantly reduces the regulatory uncertainty facing major emitters so they can begin factoring carbon reductions into their investment decisions,” she said in a statement. “Far from the draconian scenarios painted by opponents, the improved auto fuel economy standards will deliver huge savings for consumers, and the rules covering industrial emitters are modest steps whose modest costs are well worth the benefits of avoided climate damage. Hopefully we can now move past the false debate over whether or not climate change is real, and continue the hard work of building common ground for common-sense solutions.”
Current and former EPA leaders also applauded the rulings. “Today’s ruling is a strong validation of, in the Court’s own words, the ‘unambiguously correct’ approach we have taken in responding to the 2007 Supreme Court decision,” EPA Administrator Lisa Jackson said. “I am pleased that the U.S. Court of Appeals for the D.C. Circuit found that EPA followed both the science and the law in taking common-sense, reasonable actions to address the very real threat of climate change by limiting greenhouse gas pollution from the largest sources.” Dina Kruger, former director of EPA’s climate change division who currently works as a consultant, called the decision a “grand slam home run” that “met [her] highest expectations.” “The Court looked really closely at the record and weighed the petitioners’ arguments and found that EPA was right on the science and the law, and I think that says a lot about the approach that they’re taking with respect to the climate regulations, and the sound foundation they’re on,” she told GHG Monitor. She said the ruling confirms that EPA is “acting reasonable and not pursuing some radical agency” in terms of its recent climate regulations. “From the standpoint of climate regulation, this is a really big deal. Frankly, when you look at the ongoing confusion or skepticism around whether or not climate change is really happening, the court looked at EPA’s record and found it to be solid, that climate change is happening and that we need to be doing something about it,” she said.
Opponents Mull Remaining Options
Meanwhile, opponents of the regulations criticized the outcome. “The Court’s decision simply leaves in place an EPA permitting requirement that has made it very difficult to build new industrial or manufacturing facilities in the U.S,” said Jeff Holmstead, a former EPA assistant administrator who now works as a partner at the law firm Bracewell & Giuliani. “When Obama officials announced these rules, they insisted that they wouldn’t have a negative impact on the U.S. economy, and that companies would continue to invest in new and expanded facilities. But it hasn’t turned out this way.” House Energy and Commerce Committee Chairman Fred Upton (R-Mich) called the ruling a “devastating blow to the U.S. economy and American consumers” in a statement. “The Obama administration is attempting to regulate greenhouse gases in the absence of legislation. Congress and the American people rejected cap-and-trade legislation, but unelected bureaucrats at the EPA are pushing through harmful regulations that will serve as a massive energy tax on American businesses and families,” he said.
Case petitioners, including the U.S. Chamber of Commerce, the National Mining Association and the National Association of Manufacturers, said they are all reviewing the decision and will be weighing their options moving forward. “We will be considering all of our legal options when it comes to halting these devastating regulations. The debate to address climate change should take place in the U.S. Congress and should foster economic growth and job creation, not impose additional burdens on businesses,” said National Association of Manufacturers President and CEO Jay Timmons in a statement. “Given the magnitude of the impact that these greenhouse gas rules will have on the US economy, we are indeed disappointed with the court’s ruling and are reviewing the decision and considering our options,” a Chamber of Commerce spokesman told GHG Monitor.
But those legal options will likely be limited moving forward. Petitioners can either ask the appeals court for a rehearing or petition the Supreme Court to hear their case, where they will likely face an uphill battle given the pointed language found in the appeals court ruling, as well as the precedent set in Massachusetts v. EPA. Opponents’ best bet will likely be through Congressional legislation, where the two chambers remain politically divided. Carol Browner, a former EPA administrator under the Clinton Administration and climate adviser to President Obama said she expects the decision to “put an end, once and for all, to any questions about the EPA’s legal authority to protect us from industrial carbon pollution through the Clean Air Act.” “This decision is a devastating blow to those who challenge the overwhelming scientific evidence of climate change and deny its impact on public health and welfare,” she said in a statement.
