D.C. Circuit Decision on EPA Greenhouse Gas Rules Emphasizes Importance of Massachusetts v. EPA


Michael A. Nesteroff

The District of Columbia Court of Appeals decision in Coalition for Responsible Regulation v. EPA (PDF) rejecting all of the industry and state challenges to EPA’s greenhouse gas emissions rules is an important milestone in U.S. climate change regulation, but certainly not the last word. In its 82-page opinion, a unanimous panel on June 26 denied all of the claims that sought to overturn the EPA’s rules. The court concluded that EPA’s foundational Endangerment Finding — that motor vehicle emissions of greenhouse gas emissions contribute to air pollution and is reasonably anticipated to endanger public health and welfare — and the resulting Tailpipe Rule regulating emissions from motor vehicles, are not arbitrary or capricious; that the EPA was “unambiguously correct” in interpreting the Clean Air Act governing provisions; and that none of the multitude of petitioners had standing to challenge the Timing/Tailoring Rules, which delay and raise the threshold for applicability to stationary facilities.

The court had some sharp words for the challenges, as the Washington Post put it:

In its remarks, the three-judge panel seemed to bristle at the opponents’ argument that the EPA improperly relied on assessments of climate science by the Intergovernmental Panel on Climate Change, the National Research Council and the U.S. Global Change Research Program to support its findings that greenhouse gases contribute to warming, posing a threat to human health.

This argument is little more than a semantic trick,” the opinion said. “EPA did not delegate . . . any decision-making to any of those entities. EPA simply did here what it and other decision makers often must do to make a science-based judgment.

This is how science works. EPA is not required to re-prove the existence of the atom every time it approaches a scientific question,” the court said.

Throughout the opinion, the court references not only the plain language of the Clean Air Act, but also emphasizes the important role played by the U.S. Supreme Court’s 2007 decision in Massachusetts v. EPA in determining the outcomes. The court repeatedly cites to Massachusetts not only as the foundational support for EPA’s initial determination to regulate greenhouse gases as an air pollutant under the Clean Air Act, but also in disposing of several challenges. For example, in rejecting the challengers claim that the EPA should have considered policy concerns in determining whether greenhouse gases endanger public health, the court cited Massachusetts for that decision’s rejection of EPA’s earlier attempt to inject policy considerations into its determination. Similarly, challenges to the Tailpipe Rule on the basis that EPA should have deferred to the National Highway Traffic Safety Administration fuel-efficiency standards, the court referred to Massachusetts‘ rejection of a “near-identical” argument.

The losing states and industry groups already have said they will ask the U.S. Supreme Court to review the D.C. Circuit’s decision, which raises the question whether the 5-4 majority that resulted in Massachusetts has survived the retirements of Justice John Paul Stevens, the author of Massachusetts, and of Justice David Souter. While they were replaced by Justices Sonia Sotomayor and Elena Kagen, with such a close majority and the difficult questions, particularly about standing, that were raised by the challengers in Coalition for Responsible Regulation, it remains to be seen how the current Supreme Court will deal with Massachusetts and its application in Coalition for Responsible Regulation. Moreover, its also likely that, in parallel with the legal efforts, opponents of EPA will redouble their efforts in Congress to roll back the agency’s authority. The success or failure in that arena will depend on the outcome of the November elections.


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Lane Powell PC - Environmental Law Blog on:

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