I already violated my rule against speculating on the outcome
of a case based on oral argument, I might as well do it again.
I have always said that EPA's endangerment finding would
survive judicial review and that conclusion seems only more likely
to prove correct following yesterday's oral argument before the
D.C. Circuit Court of Appeals.
Both the Daily Environment Report and GreenWire noted in their reporting on the
argument that the groups challenging the rule emphasized that EPA
had not considered the policy implications of making the
endangerment finding. Of
course. Precisely. That's because the Clean Air Act
itself divorces the endangerment finding from its policy
implications. If there were any doubt about that, Massachusetts to EPA would seem to
have put such questions to rest.
Judges Tatel and Sentelle both seemed to understand this
point. Judge Tatel apparently felt compelled to remind the
petitioners that the Court of Appeals is bound by Massachusetts
v. EPA. Judge Sentelle said that:
"Sometimes in reading the petitioners briefs, I got the
impression that Massachusetts had not been
To which, the petitioners said "uh-oh".
There are a lot of issues in these cases. EPA could lose
parts of some of the rules under challenge. The Tailoring Rule
in particular still seems on thin ice to me – though I
don't know what alternatives EPA really had (and all heck will
certainly break loose if the endangerment finding is affirmed but
the Tailoring Rule is overturned). Nonetheless, the
endangerment finding itself seems compelled by the plain language
of the CAA and the decision in Massachusetts v. EPA,
unless EPA's scientific conclusion is arbitrary and capricious
– and it ain't, by a long mile.
The content of this article is intended to provide a general
guide to the subject matter. Specialist advice should be sought
about your specific circumstances.
To print this article, all you need is to be registered on Mondaq.com.
Click to Login as an existing user or Register so you can print this article.
On May 27, 2015, the United States Environmental Protection Agency (U.S. EPA) and the United States Army Corps of Engineers (Corps) issued a highly anticipated revision to the federal definition of "waters of the United States."
In an important decision last week, United States District Judge Jorge Alonso rejected the Environmental Impact Statement for the Illiana Corridor Project, Illianawhich would connect I55 in Illinois to I65 in Indiana.
The immediate effect of today's decision is that the ongoing challenge to EPA's mercury regulations will be remanded to the U.S. Court of Appeals for the D.C. Circuit, which previously upheld those regulations.
On May 27, 2015, the United States Environmental Protection Agency and the United States Army Corps of Engineers issued their highly anticipated final revision to the definition of "waters of the United States."