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Greenhouse Gas Regulation - Coalition for Responsible Regulation v. Environmental Protection Agency


In Massachusetts v. EPA, 549 U.S. 497 (2007) the Supreme Court held that GHGs may be regulated as air pollutants under the Clean Air Act.  Following that decision, EPA promulgated a series of regulations on GHGs.  Various industry groups and states (including Kentucky and Indiana) challenged these regulations in Coalition for Responsible Regulation v. EPA, 2012 WL 2381955 (D.C. Cir. 2012) claiming EPA misconstrued the Clean Air Act and acted arbitrarily in promulgating the new rules – however, the D.C. Circuit sided with EPA.  In a recent per curiam opinion, the court: (1) upheld the EPA’s Endangerment Finding and Tailpipe Rule; (2) affirmed EPA’s interpretation of the Clean Air Act provisions in question; and (3) dismissed petitioners’ challenge to the Timing and Tailoring rules for lack of standing. 

EPA’s Endangerment Finding concluded that a group of six GHGs contribute to pollution, and are “reasonably anticipated to endanger public health and welfare.”  The court confirmed that the finding under the Clean Air Act does not entail a policy analysis—instead, it is based solely on “scientific judgment.”  EPA’s use of independent scientific evidence, most coming from the Intergovernmental Panel on Climate Change, posed no problem.  As long as EPA evaluated the scientific evidence available in a rational matter, regardless of any “residual uncertainty,” EPA was justified in its finding. 

The Tailpipe Rule sets emissions standards for cars and light trucks.  Petitioners challenged this rule based on its effect on stationary-source permitting requirements.  The Rule brought GHGs under the umbrella of “any air pollutant regulated by the Clean Air Act,” triggering new permitting requirements under PSD and Title V programs for stationary emitters of GHGs.  The court held that, under Massachusetts v. EPA and the plain text of the Clean Air Act, EPA had a non-discretionary duty to promulgate the regulations, regardless of the stationary-source permitting costs. 

After establishing the broad scope of the PSD and Title V permitting requirements, the D.C. Circuit addressed the Tailoring and Timing Rules, created to “phase in” the new regulations on GHGs.  The Timing Rule pushed back the implementation of the new GHG regulations; the Tailoring Rule restricts the regulations to larger industrial sources to avoid “administrative burden” and “absurd results.”  The court dismissed challenges to these rules for lack of standing – the petitioners suffered no resulting “injury-in-fact,” so the court had no jurisdiction to consider the rules.

Coalition for Responsible Regulation has been called a “resounding affirmation” of EPA’s latest regulation on GHGs by supporters of the rules.  Critics complain of inconsistencies in the ruling and a misinterpretation of Massachusetts v. EPA.  An appeal will likely follow.

Special thanks to Patrick Estill for providing assistance in writing this article.

To view a complete PDF of the Second Quarter 2012 issue of the Air Quality Letter, click HERE.

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