Update on the Bazillion Legal Challenges Facing the EPA over Greenhouse Gases
by Hannah McCrea and Matthew Cagle, Constitutional Accountability Center
There have been a few important developments in the deluge of administrative and legal challenges to the Environmental Protection Agency’s finalization of the “endangerment finding” — the formal finding that greenhouse gases endanger human health and welfare.
To review, the EPAs’ December 2009 completion of the long-awaited “endangerment finding” cleared the way for the agency to begin regulating greenhouse gas emissions under the Clean Air Act. As could have been predicted, this action prompted an onslaught of legal action. The challenges to the endangerment finding fall into two categories: administrative petitions for reconsideration, filed with the EPA itself, and petitions for review, which are lawsuits filed against the EPA in the U.S. Court of Appeals for the D.C. Circuit. (h/t Marten Law.)
According to the EPA at least 10 separate administrative petitions for reconsideration have been filed, including one filed by Texas, one by Virginia, one by the U.S. Chamber of Commerce, and one by the mysteriously-named “Coalition for Responsible Regulation” – a group apparently formed for the sole purpose of challenging the endangerment finding. All of these petitions are currently under consideration.
Meanwhile, at least 17 petitions for review have been filed in the D.C. Circuit challenging the endangerment finding. These were filed by many of the same groups that filed administrative petitions, including Texas, Virginia, the Chamber, and, not surprisingly, the Coalition for Responsible Regulation, as well as by numerous energy, mining, and agricultural trade groups, the state of Alabama, and several U.S. Representatives, including (perhaps most notably) Rep. Michelle Bachmann (R-MN). In addition, at least 15 States, along with other interested parties, have intervened on behalf of petitioners, while an opposing group of 19 States, along with the City of New York City and other interested parties, have intervened on behalf of the EPA.
The D.C. Circuit has consolidated these cases (listed below) under Coalition for Responsible Regulation, et al. v. EPA (D. D.C. 09-1322). On June 16, at the request of the EPA, a three-judge panel comprised of Judges Tatel, Griffith, and Kavanaugh placed these cases on hold to allow the EPA to complete its administrative reviews. The court ordered that “the cases be held in abeyance until fourteen days after EPA’s decision on the petitions for reconsideration or August 16, 2010, whichever comes first.”
Finally, the D.C. Circuit has also consolidated five petitions for review (also listed below) filed against the EPA challenging the “tailoring rule,” which was finalized in May 2010. The “tailoring rule,” an adjustment to the EPA’s permitting regulations, was an important step toward applying the Clean Air Act to greenhouse gas emissions. Pursuant to this rule, a source would not qualify as a “major emitter” with respect to greenhouse gases (and therefore would not be subject to certain regulations) unless it emitted more than 25,000 tons of carbon dioxide, or carbon dioxide-equivalent gas per year. (For most pollutants regulated by the Clean Air Act, a source is considered a “major emitter” if it emits greater than 100, or in some cases 250, tons per year of an air pollutant, Thus, the tailoring rule allows the agency to promulgate rules for greenhouse gases without affecting the millions of small farms and businesses that emit relatively small amounts of carbon.)
The challenges to the tailoring rule were brought by many of the same persons and entities challenging the endangerment finding, including several U.S. Representatives, and several energy and agricultural industry groups – the latter led by none other than the Coalition for Responsible Regulation. On June 23, the D.C. Circuit set an initial briefing schedule for these cases, with all dispositive motions currently due by Sept 13, 2010.
Stay tuned to Warming Law for updates on these cases. Also, for interested readers, the cases discussed above are named after the jump: Read more »
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