EPA Authority to Regulate Greenhouse Gases Survives Another Challenge

Jul 26, 2012 by

July 28, 2012

Last month, the U.S. Court of Appeals for the District of Columbia Circuit ruled to uphold 2009’s EPA endangerment finding for greenhouse gases. (Photo credit: www.cadc.uscourts.gov)

Last month, the U.S. Court of Appeals for the District of Columbia Circuit ruled to uphold 2009’s EPA endangerment finding for greenhouse gases. (Photo credit: www.cadc.uscourts.gov)
The U.S. Environmental Protection Agency’s (EPA) efforts to regulate greenhouse gases have been under attack ever since the 2007 Massachusetts v. EPA Supreme Court ruling that confirmed its authority to do so. In 2010, just before efforts to pass a cap-and-trade climate bill were abandoned in the Senate, Republican Senator Lisa Murkowski sponsored failed legislation to nullify the Supreme Court decision and block EPA from moving forward with greenhouse gas regulations. Attempts to undermine EPA’s regulatory authority were once again thwarted last month when the U.S. Court of Appeals for the District of Columbia Circuit rejected several legal challenges and upheld EPA’s 2009 endangerment finding for greenhouse gases.
First, a bit of background to explain how EPA began regulating greenhouse gases. In 2003 under the Bush Administration, EPA determined that it lacked authority to regulate greenhouse gases, and that even if EPA did have this authority it would not set vehicle greenhouse gas emission standards. In response, Massachusetts led a coalition of 12 states and several cities and non-governmental organizations to sue EPA for failing to regulate greenhouse gases.

In 2007, the Supreme Court ruled in favor of Massachusetts, mandating that EPA determine whether greenhouse gas emissions “endanger public health or welfare.” EPA released its endangerment finding in 2009, which determined that greenhouse gas emissions are harmful to both humans and the environment because they constitute the main driver of human-caused climate change. Based on the Supreme Court ruling, the endangerment finding legally required EPA to regulate greenhouse gas emissions from vehicles and stationary sources under the Clean Air Act. In order to avoid overwhelming permitting agencies with a huge new bureaucratic burden, EPA established a “tailoring rule” for greenhouse gas emissions from stationary sources so that initially only large industrial facilities will be required to obtain greenhouse gas emissions permits.

Since the endangerment finding, EPA has taken steps to act on this authority. In April 2010, EPA finalized greenhouse gas emission tailpipe standards for passenger cars and light trucks in conjunction with strengthened fuel economy standards. In March of this year, EPA further exercised its regulatory authority by proposing the country’s first carbon dioxide (CO2) standards for new fossil fuel power plants, effectively banning future coal plants that do not include plans for carbon capture and storage technology.

These actions by EPA have been met with continued resistance from certain political and industry interests. In the most recent attempt to stem EPA’s regulatory authority over greenhouse gas emissions, twenty-six states and industry groups filed challenges to the endangerment finding, vehicle emission standards, and tailoring rule. The challenges were based on claims that EPA rules are “arbitrary and capricious” and reflect an improper interpretation of the Clean Air Act – despite the 2007 Massachusetts v. EPA Supreme Court Ruling. The U.S. Court of Appeals for the District of Columbia Circuit consolidated the appeals and, on June 26, a three-judge panel unanimously rejected them all.

2007’s Massachusetts v. EPA ruling sparked a series of challenges to the agency’s authorityt or regulate greenhouse gases, the latest installment of which concluded last month. (Photo credit: Generation Hub)

In an 82-page decision, the panel of judges summarily rejected all of the arguments brought against EPA, concluding that:  “1) the Endangerment Finding and Tailpipe Rule are neither arbitrary nor capricious; 2) EPA’s interpretation of the governing [Clean Air Act] provisions is unambiguously correct; and 3) no petitioner has standing to challenge the Timing and Tailoring Rules”.

Several times throughout its decision strongly upholding EPA authority to regulate greenhouse gases, the panel used harsh language in response to the petitioners. Regarding the challenge that EPA “improperly ‘delegated’ its judgment” to other scientific panels and agencies – including the Intergovernmental Panel on Climate Change and the U.S. Global Change Research Program – to reach its endangerment finding, the judges scolded that “[t]his argument is little more than a semantic trick […] 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 judges also rejected the petitioners’ claim that scientific evidence does not support EPA’s endangerment finding. Citing the extensive body of scientific literature that that EPA drew on to conclude that greenhouse gas emissions contribute to climate change, which in turn harms human health through “extreme weather events, changes in air quality, increases in food- and water-borne pathogens, and increases in temperature,” the Court determined that the endangerment finding was justified. The decision strongly defended the role of EPA as an expert technical agency to make scientific determinations, stating: “In the end, Petitioners are asking us to re-weigh the scientific evidence before EPA and reach our own conclusion. This is not our role.”

This latest decision represents a major victory for EPA, which has lately been a target in partisan squabbles over government overreach. It also provides a strong and much-needed defense of the scientific process against political and industry interests, which have been especially active in undermining and misrepresenting the huge body of evidence supporting human-caused climate change and its impacts. Hopefully this decision will embolden EPA to move forward with additional and stronger greenhouse gas regulations.

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