Time is up. The deadline for filing a judicial challenge to the EPA’s Endangerment Finding that found that six greenhouse gases endanger the public health and environment has passed. As reported by Robin Bravender of Greenwire in The New York Times:
Industry groups, conservative think tanks, lawmakers and three states filed 16 court challenges to U.S. EPA’s “endangerment” finding for greenhouse gases before yesterday’s deadline, setting the stage for a legal battle over federal climate policies.
Filing petitions yesterday were the Ohio Coal Association, the Utility Air Regulatory Group, the Portland Cement Association, the state of Texas and the Competitive Enterprise Institute. Another was filed by a coalition that includes the National Association of Manufacturers (NAM), the American Petroleum Institute, the Corn Refiners Association, the National Association of Home Builders, the National Oilseed Processors Association, the National Petrochemical and Refiners Association, and the Western States Petroleum Association.
The lawsuits ask the U.S. Circuit Court of Appeals to review EPA’s determination that greenhouse gases endanger human health and welfare. That finding — released in December in response to a 2007 U.S. Supreme Court ruling — allows the agency to regulate the heat-trapping emissions under the Clean Air Act. Observers expect the court to consolidate the petitions.
. . . .
Ten other petitions have been filed by Alabama, Virginia, the American Iron and Steel Institute, Gerdau Ameristeel Corp., the American Farm Bureau Federation, the National Mining Association, Peabody Energy Co., the U.S. Chamber of Commerce, 13 House lawmakers and the Southeastern Legal Foundation, and the Coalition for Responsible Regulation (E&ENews PM, Feb. 16).
A coalition of 16 states and New York City has also asked to intervene on behalf of EPA in the endangerment case (Greenwire, Jan. 25).
Procedural Background on Petitions for Review
Before going any further, perhaps a brief explanation of how the Petition for Review process works is in order. The initial filing in a Petition for Review of an agency decision is merely a short one- or two-page document identifying the agency decision that the Petitioner wishes to have the Court of Appeals review and the statute under which such review is granted. The Petition for Review does not shed any light on the Petitioners’ arguments or issues, that will come later, in their statement of issues and their briefs. Likewise, because all sixteen Petitions for Review seek review of the same agency decision, they most likely will be consolidated. See Handbook of Practice and Internal Procedures, p.23, U.S. Court of Appeals for the District of Columbia Circuit. Usually, this means that all of the Petitioners will file one brief, the EPA will file its answer, and then the Petitioners will file a joint reply brief. Oral argument would then take place some time after the Reply brief is filed.
Lack of Standing Will Still Be a Big Hurdle for Petitioners
As explained in a previous blog post, standing is a big issue in the U.S. Court of Appeals for the District of Columbia. See, “Legal Challenges to EPA’s Endangerment Finding Will Go Nowhere and Waste Time and Money.” The private parties and associations will have difficulty showing that they have the requisite characteristics to establish their standing to sue. The presence of Texas, Virginia and Alabama on the roll of Petitioners, however, does present an interesting question. One of the primary arguments that the EPA used in defending Massachusetts’ suit against the EPA to get the EPA to regulate greenhouse gases was that the Petitioners in that matter lacked standing to sue. The U.S. Supreme Court held in the Massachusetts v. EPA (the same case that the EPA relies on to give it Clean Air Act regulatory authority) that EPA’s refusal to regulate CO2 has led to “actual” and “imminent” harm to the state of Massachusetts, mainly in the form of rising sea-levels along the state’s coast. This, the Court said, is an exercise of Massachusetts’ quasi-sovereign right of “parens patriae.” This concept is generally utilized by states to protect quasi-sovereign interests such as health, comfort and welfare of the people, interstate water rights, and the general economy of the state. Gibbs v. Titelman, 369 F.Supp. 38, 54.
The question now becomes whether Texas, Alabama and Virginia’s quasi-sovereign rights will be enough to establish standing. In Massachusetts v. EPA, Massachusetts wanted the EPA to regulate tailpipe emissions of greenhouse gases, and alleged that its coastline was injured as a result of the rising sea levels caused by Climate Change, which, in turn was caused in part by tailpipe emissions of greenhouse gases. In that case, the Court held that there was a causal connection between the agency decision (no regulation of tailpipe emissions) and the injury incurred by the Petitioner (injury to the coast line). While it may be true future EPA regulations (such as the Sec. 202 tailpipe emissions standards or the Tailoring Rule) will impact the “general economy” of the states, the Endangerment Finding does not regulate the emission of greenhouse gases. Therefore, there can be no causal connection between the Endangerment Finding and the alleged injury.
Consolidation With Challenges to Other EPA GHG Rules Will Not Possible
One theory to get around the lack of injury on the part of the private petitioners and the lack of causation on the part of the state petitioners, would be to roll these Petitions for Review up with Petitions for Review of the upcoming Clean Air Act Sec. 202 Tailpipe emission rules and/or the “Tailoring Rule,” which will require facilities that emit over 25,000 tons of greenhouse gases a year to obtain a permit. If consolidation were granted, the injury and causation issues might be alleviated, but the court probably will not consolidate the cases across the various rules. See D.C. Circuit Local Rules. Although the Endangerment Finding may be the predicate for both of those rules, each one is a separate agency decision with a separate Administrative Record. In addition, since those rules have not become final yet, there is nothing to prevent the EPA from delaying the final rules until it becomes practically impossible for the Petitioners to consolidate the cases.
Attacks on EPA’s “Process” Still Probably Will Not Carry the Day
While the Southeastern Legal Foundation’s focus on attacking the science behind Climate Change is almost laughable in its futility, the U.S. Chamber of Commerce’s approach to attack the process has a better chance of success. As explained in a previous blog post, the EPA will get deference on the science it has relied upon to draft the Endangerment Finding. Courts are not bodies of scientists that have the knowledge or the capacity to judge whether the science of Climate Change is or is not undermined by the recent scandals that have been plaguing the IPCC and its reports. Because of that fact, the Court will give deference to an agency’s expertise in an area that it administers. The Chamber of Commerce, however, stated in its press release that
The Chamber’s legal challenge will focus specifically on the inadequacies of the process that EPA followed in triggering Clean Air Act regulation, and not on scientific issues related to climate change or endangerment. Further details about our challenge will be forthcoming in the coming weeks when our statement of issues is filed.
This approach may have some legs. Should the Chamber get past the thorny standing issues, attacking the EPA’s process may be the best shot at getting the Endangerment Finding vacated. One problem with the approach is that it would most likely result in a remand back to the EPA to have the Endangerment Finding done properly according to whatever directions the Court would place, not a decision that the public and the environment are not endangered by the emission of greenhouse gases. The other, more pressing problem, though, is the fact that it will be difficult to prove that the EPA violated the “process,” when the process is defined by the EPA and it receives deference from the court when it interprets its own rules and statutes within its administrative responsibilities. See, e.g., Thomas Jefferson Univ. v. Shalala, 512 U.S. 504, 512, 114 S.Ct. 2381, 129 L.Ed.2d 405 (1994). Moreover, the court will only overturn the EPA’s decision if it finds that it acted “arbitrarily and capriciously” or unreasonably, which are fairly high standards to clear.
Massachusetts v. EPA Gives EPA the Authority to Do What It Did
In the end, the issue that really sticks in the craw of the Petitioners is their belief that the EPA has overreached itself, not only in the Endangerment Finding, but in attempting to regulate emissions of greenhouse gases. As the Chamber’s press release stated:
We continue to call for Congress to address climate change policy through the legislative process, rather than having EPA misapply environmental statutes like the Clean Air Act or Endangered Species Act that were not created to regulate greenhouse gas emissions.
That issue, however, has already been settled. The U.S. Supreme Court in Massachusetts v. EPA specifically stated that the EPA has the authority under the Clean Air Act to do exactly that: regulate emissions of greenhouse gases. The Supreme Court held that the Clean Air Act unambiguously covers all kinds of air pollutants, including greenhouse gases:
The Clean Air Act’s sweeping definition of “air pollutant” includes “any air pollution agent or combination of such agents, including any physical, chemical . . . substance or matter which is emitted into or otherwise enters the ambient air . . . .” Section 7602(g) (emphasis added). On its face, the definition embraces all airborne compounds of whatever stripe, and underscores that intent through the repeated use of the word “any.” Carbon dioxide, methane, nitrous oxide, and hydrofluorocarbons are without a doubt “physical [and] chemical . . . substances[s] which [are] emitted into . . . the ambient air.” The statute is unambiguous.
The Supreme Court went on to say:
If EPA makes a finding of endangerment, the Clean Air Act requires the agency to regulate emissions of the deleterious pollutant from new motor vehicles.
(emphasis added). How can the EPA do other than what it has done in the face of the Supreme Court’s holding? Until Congress legislatively overrules Massachusetts v. EPA (which it may do) and takes away the EPA’s authority under the Clean Air Act to regulate greenhouse gas emissions, the EPA has that authority.
While the statements by the Petitioners who have filed Petitions for Review this week seem to have taken into account the infirmities that plague the statements that accompanied the Southeastern Legal Foundation’s filing of its Petition for Review, they still are fighting an uphill battle. Even if they get by the considerable problem of standing, they will run smack dab into agency deference and, most likely, have their Petitions for Review be summarily denied. The organizations, individuals and states probably would have served their publics better by waiting to challenge the Sec. 202 tailpipe emissions or the Tailoring Rule – but that is the indeterminate future and there are primaries to be won, tea-baggers to win over, and headlines to make, which, ultimately, are the probable motives for these Petitions for Review.