Court Upholds EPA's Greenhouse Gas Regulations

"EPA simply did here what it and other decision-makers 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 of the scientific evidence in large part consisted of 'syntheses' of individual studies and research.  Even individual studies and research papers often synthesize past work in an area and then build on it.  This is how science works.  EPA is not required to re-prove the existence of the atom every time it approaches a scientific question." Coalition for Responsible Regulation v EPA (DC Circuit Court of Appeals, Case No. 09-1322).

On June 26, 2012, the Court of Appeals for the District of Columbia Circuit (DC Court)issued its ruling on industry and State challenges to EPA's decision to regulate greenhouse gases under the Clean Air Act (CAA).  In its decision, the Court rejected all challenges to EPA's regulation of greenhouse gas emissions and paved the way for a possible appeal to the United States Supreme Court.  It remains an open question whether the Supreme Court will revisit its recent decision in Massachusetts v EPA, which paved the way for EPA's regulations.

As background, in Massachusetts v EPA, the Supreme Court ruled that greenhouse gases could be regulated under the CAA as an air pollutant if the Agency determined that such gases were reasonably anticipated to endanger public health and welfare.  EPA then considered the issue and prepared an "Endangerment Finding," which concluded that greenhouse gases did in fact represent an endangerment, thus triggering its obligation to regulate such gases.  EPA published rules regulating greenhouse gas emissions for light-duty vehicles, which in turn triggered an obligation to regulate greenhouse gas emissions for all sorts of sources for this pollutant.  EPA decided to regulate only the largest sources of greenhouse gas emissions, leaving other smaller sources for future consideration, which is known as the "Tailoring Rule." 

Various industrial groups and some States challenged EPA's rules in the DC Court, which has jurisdiction over challenges regarding federal regulation.  The challenges were quite broad, but the Court rejected each in turn.  First, it determined that EPA's "Endangerment Finding" was supported by the scientific evidence in the record and under the CAA, EPA could not consider "policy" arguments to decline to regulate such pollutants.  EPA's conclusions were based on substantial evidence on the record.  Further, as the Clean Air Act is precautionary in nature it does not require certainty, only a conclusion on the part of EPA that greenhouse gases could reasonably cause the anticipated endangerment.

The automotive industry and unions representing auto workers did not challenge EPA's regulations concerning cars and trucks, industry.  But, States challenged EPA regulations, because once EPA regulated cars and trucks, the CAA required EPA to regulate other industries.  If the car and truck emissions regulations could be successfully challenged, then all those following them would also fail.  However, the Court found that the car and truck standards were appropriate and, as a result, EPA was forced to begin regulating other sources under the plain language of the CAA.

Finally, the Court ruled that the petitioners that were challenging the phased approach EPA had selected for regulating greenhouse gases, i.e., begin with the largest emitters and then decide how best to handle smaller emitters, did not have standing to challenge those regulations.  Under the doctrine of "standing," cases can only be brought by people who have suffered an "injury in fact" that was caused by the activity that forms the basis of the complaint.  In this case, as the phased approach under the "Tailoring Rule" actually lessened the burden of the regulations on the petitioners, they did not suffer an "injury in fact."

Of course, this is just a thumb-nail sketch of an extremely long (84 pages) and detailed opinion.  It tracks the Supreme Court's holding in Massachusetts v EPA quite closely.  As Massachusetts v EPA is relatively new decision, it is unlikely that the Supreme Court will reverse it, should it even decide to hear an appeal of the DC Court's ruling.  It is most likely that EPA's Endangerment Finding and resulting regulations will stand, unless Congress passes a bill amending the Clean Air Act and the President signs the bill into law.

The author, Saulius Mikalonis, is an environmental attorney with over 25 years of experience in the Bloomfield Hills offices of Plunkett Cooney.  He is also the author of The Green Blawg, in which he writes about environmental law issues for the non-lawyer.  In addition to practicing law, Mr. Mikalonis is an adjunct professor at the Thomas M. Cooley Law School, Auburn Hills Campus, at which he teaches a course entitled "Sustainable Development Law & Policy" and a former Board Member of the Detroit Regional Chapter of the United States Green Building Council (USGBC).
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