In considering the most serious efforts to date to invalidate
the federal climate change regulations, the U.S. Court of Appeals
for the D.C. Circuit unanimously upheld several of EPA's Clean
Air Act greenhouse gas (GHG) emissions rules against a challenge by
industry groups and several states. In the case, Coalition for
Responsible Regulation, Inc., et al. v. EPA, No 09-1322, the
Court noted that considerable deference to agency scientific
expertise was appropriate, and that EPA had taken steps to ease the
potential regulatory burden on the challengers.
At issue were a series of three related EPA actions in response
to Massachusetts v. EPA, the Supreme Court's landmark
2007 decision requiring EPA to assess GHGs as air pollutants under
the Clean Air Act. The first was EPA's Endangerment Finding,
which concluded that GHGs may "cause, or contribute to, air
pollution which may reasonably be anticipated to endanger public
health or welfare." The Court noted that "EPA had before
it substantial record evidence that anthropogenic emissions of
greenhouse gases 'very likely' caused warming of the
climate over the last several decades." This
"substantial" scientific evidence was adequate to support
the Endangerment Finding, particularly in light of the
"precautionary and preventative orientation" of the Clean
The second action was EPA's imposition of GHG emissions
standards for cars and light trucks (the "Tailpipe
Rule"). The Court rejected an argument that EPA improperly
failed to account for certain cost impacts, holding that under
Massachusetts v. EPA, the EPA had no discretion to decline
to promulgate vehicle emissions standards once it had determined
that GHGs could endanger public health or welfare.
The third challenge involved EPA's application of certain
Clean Air Act permitting requirements to large stationary sources
of GHGs. The challengers claimed that those requirements applied
only to a subset of pollutants, called "criteria
pollutants," regulated pursuant to National Ambient Air
Quality Standards (NAAQS), which do not include GHGs. The Court
disagreed and upheld EPA's longstanding interpretation of the
requirements as applicable to emitters of any pollutant
regulated by the Clean Air Act, which now includes GHGs.
Related to the third issue, the Court dismissed a challenge to
EPA's "Timing and Tailoring Rule," which delayed and
limited the application of the permitting requirements to major
sources with GHG emissions exceeding 75,000 or 100,000 tons per
year (depending on the particular provision). The permitting
requirements are normally triggered for air pollutant emissions of
100 or 250 tons per year, but in light of the vast number of
small-scale GHG sources that would exceed these thresholds, EPA
opted to raise the thresholds to avoid an "overwhelming
permitting burden." The Court found that the industry and
state litigants in the case could not demonstrate that they were
harmed by the Rule so as to have standing to challenge it in Court,
given that the Rule had the effect of mitigating the burden of the
GHG regulatory scheme.
While the decision is a clear victory for the EPA, ultimately
the issues are likely to be decided by the Supreme Court. And with
further attempts in Congress to reverse EPA's actions pending,
the states remain sharply divided regarding federal attempts to
address global warming.
Morrison & Foerster and its Environment and Energy Group
have more than four decades of experience in Clean Air Act and
climate change issues, both nationally and in California, with its
implementation of the Global Warming Solutions Act ("AB
32"). Along with our Cleantech Group, we are closely following
these new developments and can provide additional detailed analysis
regarding this case upon request.
Because of the generality of this update, the information
provided herein may not be applicable in all situations and should
not be acted upon without specific legal advice based on particular
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