Yesterday, in Coalition for Responsible Regulation v. EPA, the D.C.
Circuit Court of Appeals rejected all challenges to EPA's GHG
rules. The decision is a reminder that important cases, or
those with big stakes, are not necessarily difficult
cases. Anyone reviewing the decision will quickly see that, to
the court, this was not a hard case. Indeed, the tone of the
opinion has the feel of a teacher lecturing a student where the
teacher has a sense that the student is being willfully obtuse.
The bottom line is that EPA not only had
authority to issue the regulations; it
had a legal duty to do so under the plain
terms of the Clean Air Act and the Supreme Court's decision in
Massachusetts v. EPA. The decision focuses on the
challenges to EPA's Endangerment Finding and the Tailpipe
Rule. However, as the Court noted repeatedly, most of the
petitioners' arguments were foreclosed by Massachusetts v.
calling to mind the statement by Judge Sentelle (a Reagan
appointee) during oral argument that
Sometimes in reading the petitioners' briefs, I got the
impression that Massachusetts had not been decided.
The Supreme Court ruled that GHGs are an air pollutant. It
gave EPA almost no wiggle room in which it could avoid an
endangerment finding. The plain language – a phrase
used repeatedly in yesterday's decision – of the CAA
requires EPA to regulate "any air pollutant." End of
I'm left with two conclusions. The first, regarding GHG
regulation itself, is that, as noted in
E&E Daily today, the ball is now squarely back in
Congress's court. Of course, now Congress knows for
certain that the default is GHG will be
regulated if Congress does not act. Like E&E Daily, I do
not see any imminent "grand bargain" to create a
market-based GHG regulatory system in return for preclusion of
other EPA GHG regulation. However, at some point it will get
put back on the table.
The second is that I wish this case had never been
brought. I understand that the stakes were high, but there was
always only going to be one outcome. Moreover, not only did
the petitioners lose, but they got a decision with plenty of
language destined to haunt the regulated community in future cases,
EPA is not required to re-prove the existence of the atom every
time it approaches a scientific question.
EPA need not provide rigorous step-by-step proof of cause and
[The CAA] requires a precautionary, forward-looking scientific
judgment about the risks of a particular air pollutant, consistent
with the CAA's precautionary and preventive orientation.
The language regarding the "precautionary and preventive
orientation" of the CAA is most troubling and appears more
than once in the opinion. I'm sure that Cass Sunstein, who
knows that the rules were valid, but who has been a frequent
critic of the precautionary principle, must have cringed at
We're going to be living with this decision for a long time,
and not just in getting PSD permits for GHG emissions.
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