More Challenges to EPA Greenhouse Gas Rulemaking

Beginning last December and continuing through this past May, EPA has issued four main rules regarding regulation of greenhouse gas (GHG) emissions.

Since that time, more than 150 businesses, advocacy groups, trade associations and government entities have challenged EPA’s decision-making. With so many litigants involved, and with Senator Kerry announcing a climate bill is unlikely to be passed in the near future, it is becoming more likely that the nation’s climate policy will be shaped in the courtroom.

The EPA rules being challenged in the courts include: (1) the December 2009 “endangerment finding,” where EPA determined GHGs are a threat to human health and welfare; (2) a March 2010 “triggering rule,” a determination about when GHGs would be subject to regulation under the Clean Air Act; (3) April 2010’s “auto rule,” setting GHG emissions standards for cars and light-duty trucks; and (4) the “tailoring rule” issued in May 2010, which limited the newly triggered rules for stationary sources to the largest emitters.

Most recently, a group of petitioners, including the National Association of Manufacturers, filed a motion with the U.S. Court of Appeals for the D.C. Circuit for a partial stay of EPA’s greenhouse gas (GHG) regulations.  The petitioners are asking the court to issue a narrowly tailored partial stay to prevent three of EPA’s GHG rules  — the tailpipe rule, the prevention of significant deterioration (PSD) interpretive rule (also known as the “triggering rule” discussed above), and the tailoring rule  —  from taking effect as to stationary sources, while allowing EPA to proceed with its efforts to control GHGs from cars and light duty trucks. Petitioners assert that the rulemakings are arbitrary and capricious.

The recent petitioners argue EPA ignored Clean Air Act provisions linking PSD exclusively with the National Ambient Air Quality Standard (NAAQS) program.  Petitioners argue that emissions of a pollutant trigger PSD permitting if and only if the pollutant is subject to NAAQS and the source is located in an attainment area for that pollutant.  Since EPA has not established a NAAQS for GHGs and because no region of the country is designated as an attainment area for GHGs, petitioners argue that EPA’s decision that GHG emissions alone trigger PSD permitting violated the Clean Air Act.  Petitioners also argue that EPA failed to conduct the necessary analyses of the impacts of these rules, including the costs and benefits.

The State of Texas petitioned the same court to stay these rules for similar reasons.  Texas also argued that EPA’s endangerment finding is legally unsupported because the EPA outsourced its legal obligation to perform a scientific assessment to the Intergovernmental Panel on Climate Change.

Given the number of litigations, many parties – including the U.S. Chamber of Commerce, Competitive Enterprise Institute and Southeastern Legal Foundation – have asked the DC circuit to designate all the challenges as “complex” litigation.  Doing so would allow all four agency rules to be examined and determined by the same panel of judges, greatly reducing (in the opinion of the plaintiffs) the amount of litigation and paper pleadings.

EPA filed a response opposing the changes to page limits and most of the requests to coordinate the four sets of challenges.

With certain deadlines approaching and additional guidance and regulations expected, SGR will continue to monitor the legal challenges to EPA’s GHG rules and provide updates.

For more information, please contact Steve O’Day.

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