"Following the Supreme Court's decision in
Massachusetts v. EPA, 549 U.S. 497 (2007)"which clarified that
greenhouse gases are an "air pollutant" subject to
regulation under the Clean Air Act (CAA)"the
Environmental Protection Agency promulgated a series of
greenhouse gas-related rules.
First, EPA issued an Endangerment Finding, in
which it determined that greenhouse gases may
"reasonably be anticipated to endanger public health or
welfare." See 42 U.S.C. Â§ 7521(a)(1).
Next, it issued the Tailpipe Rule, which set
emission standards for cars and light trucks.
Finally, EPA determined that the CAA requires major stationary
sources of greenhouse gases to obtain construction and operating
permits. But because immediate regulation of all such sources would
result in overwhelming permitting burdens on permitting USCA Case
#09-1322 Document #1380690 Filed: 06/26/2012 Page 15 of 82 16
authorities and sources, EPA issued the Timing and
Tailoring Rules, in which it determined that only the
largest stationary sources would initially be subject to permitting
Petitioners, various states and industry groups, challenge all
these rules, arguing that they are based on improper constructions
of the CAA and are otherwise arbitrary and capricious.
But for the reasons set forth below, we conclude: 1) the
Endangerment Finding and Tailpipe Rule are neither arbitrary nor
capricious; 2) EPA's interpretation of the governing CAA
provisions is unambiguously correct; and 3) no petitioner has
standing to challenge the Timing and Tailoring Rules. We
thus dismiss for lack of jurisdiction all petitions for review of
the Timing and Tailoring Rules, and deny the remainder of the
This is a major victory for the Obama Administration and for the
EPA, but will likely be appealed to the notoriously conservative US
The EPA has been frank that it would have preferred Congress to
enact greenhouse gas legislation, rather than trying to shoehorn
GHG regulation into the Clean Air Act, which was originally
designed for toxics. But since Congress is paralyzed in gridlock,
the Obama Administration decided to try to use the tool they have,
which is the Clean Air Act.
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