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 »

Today, in an important victory for those who care about government’s ability to protect the environment, (including Constitutional Accountability Center, which filed a brief in the case) the Supreme Court unanimously rejected an absurd takings claim by a handful of Florida property owners who objected to a beach restoration project on Florida’s Gulf Coast that not only restored eroded beaches, but also enhanced property values (something most property owners, unsurprisingly, supported). Justice Scalia wrote for the Court, while Justice Kennedy (joined by Justice Sotomayor) and Justice Breyer (joined by Justice Ginsburg) each filed separate opinions concurring in part and in the judgment. (Justice Stevens did not participate in this case, presumably because he is a Florida beachfront property owner himself.) The Justices were unanimous in holding that the property owners “loss” did not constitute an uncompensated taking. However, they were evenly divided on the question of whether a “judicial taking” can ever occur.

At issue in Stop the Beach Renourishment v. Florida Department of Environmental Protection was whether a decision by the Florida Supreme Court upholding Florida’s beach restoration program constituted a “judicial taking.” In 1961, Florida introduced its Beach and Shore Preservation Act to address beach erosion caused by rising sea-levels and hurricanes, which have grown worse in recent years due to global warming. Under the Act, the state may agree to rebuild a highly-eroded beach area and then maintain the beach to a fixed boundary called the erosion control line. As a result, the boundary between the state land and private property shifts from the variable mean high tide mark to a fixed erosion control line. In 2003, the city of Destin, Florida applied for such a restoration project; however, a group of beachfront property owners challenged this change in property boundaries as a violation of state law. The property owners lost their case before the Florida Supreme Court, and sought federal Supreme Court review on the theory that, in denying their state law claims, the Florida Supreme Court so distorted Florida law that its ruling amounted to a “judicial takings” — a species of takings claim that the U.S. Supreme Court had hinted at, but never officially recognized. Read more »

The Senate just voted, 47-53, to reject Senator Lisa Murkowski’s resolution to strip the EPA of its authority – under the Clear Air Act and Massachusetts v. EPA – to regulate greenhouse gas emissions. We’ve been covering the progress of the resolution at Warming Law, most recently here.

Every Republican voted for the measure, as did Democrats Mark Pryor, Evan Bayh, Ben Nelson, Jay Rockefeller, Blanche Lincoln, and Mary Landrieu.

As our readers know, the U.S. Court of Appeals for the Fifth Circuit voted back in March to re-hear, en banc, the global warming nuisance case of Comer v. Murphy Oil, which had been dismissed by the District Court but reinstated by a three-judge panel of the Court of Appeals.    On Friday, however, five judges of the Fifth Circuit, finding the court in an unusual procedural morass, issued an order – over spirited dissents – dismissing the appeal without re-hearing because the court did not have a quorum.  As a result, because the panel’s ruling had been vacated when the Fifth Circuit granted the motion to re-hear the case en banc, the District Court’s original order dismissing the case now stands.

In Comer, property owners along Mississippi’s Gulf Coast are seeking damages related to Hurricane Katrina from a number of oil companies   Relying on the common law principle of “nuisance,” the plaintiffs have alleged that the companies “engaged in activities that have produced the greatest single source of by-products leading to the development and increase of global warming,” and that the environmental conditions in the Gulf of Mexico that fostered the strengthening of Hurricane Katrina were “the direct result of” global warming.

The case was originally dismissed in August 2007 on political question and standing grounds; however, last fall, a three-judge panel of the Fifth Circuit reversed the dismissal and remanded the case to the District Court in Mississippi. The panel held that the plaintiffs have standing to bring their public and private nuisance claims, as well as trespass and negligence claims, and that none of these claims presents non-justiciable political questions.

In March, by a 6-3 vote, and with seven judges of the Fifth Circuit recused, the Court of Appeals granted the defendants’ motion to re-hear the case en banc.  Oral argument was initially set for May 24, but was postponed when one of the nine previously non-recused judges was also recused, leaving only eight judges  — of the court’s 16 —  to re-hear the case, a number insufficient for a quorum.

Five of those eight remaining judges (two put on the court by President Reagan and the other three by G.W. Bush) on Friday ordered that the appeal be dismissed, since a court, in the absence of a quorum “cannot conduct judicial business.”  In addition, according to the five judges, the court had no authority to reinstate the vacated panel decision that had reversed the District Court’s dismissal of the lawsuit.  In their order dismissing the appeal (and thus effectively dismissing the case), the five judges identified a number of other “options” they had rejected, including asking the Chief Justice to appoint a judge from another Circuit to establish a quorum.

The court’s remaining three non-recused judges – the same judges who had heard the appeal as a panel and reversed the District Court’s dismissal – dissented from Friday’s order.  Judge W. Eugene Davis, joined by Judge Carl E. Stewart, found “an inexplicable disconnect” between the majority’s notion that the court was powerless to conduct business yet had “the authority to dismiss the appeal.”  In a separate dissent, Judge James L. Dennis called the majority’s action “shockingly unwarranted” and accused the majority of “turning a blind eye to several legally viable alternative courses of action. . .”  According to Judge Dennis, if the five-judge majority’s “precipitous summary dismissal of the appeal is not corrected, it will cause the sixteen-active judge body of this United States Court of Appeals to default on its absolute duty to hear and decide an appeal of right properly taken from a final district court judgment.” Read more »

Climate Wire (via The New York Times) reports today that the resolution to strip the EPA of its authority to regulate greenhouse gases under the Clean Air Act, introduced earlier this year by Sen. Lisa Murkowski (R-Alaska), will face a unanimous consent vote on the Senate floor on June 10.

The vote has been scheduled pursuant to an agreement between Sen. Murkowski and Senate Majority Leader Harry Reid (D-Nevada).  Climate Wire explains:

The Senate would debate the measure for 10 hours; no filibusters or amendments would be possible.

Murkowski’s resolution would need 51 votes to clear the chamber. She already has 41 co-sponsors, including three Democrats: Sens. Mary Landrieu of Louisiana, Blanche Lincoln of Arkansas and Ben Nelson of Nebraska.

Even if the resolution passes the Senate, it faces an uphill climb in the House, which does not have the same expedited procedures, and it faces a likely veto from President Obama.

Warming Law readers may recall that Sen. Murkowski threatened to introduce the disapproval resolution — which, if passed by both houses and signed by the President, would function as a legislative veto of the EPA’s powers to regulate greenhouse gases — throughout the  fall, as the EPA prepared its endangerment finding for CO2.  After the endangerment finding was finalized in December, Sen. Murkowski introduced her resolution with 38 co-sponsors – including the 3 Democrats.

Of course, Sen. Murkowski’s efforts to strip the EPA of its authority to regulate greenhouse gases follow the Supreme Court’s landmark ruling in Massachusetts v. EPA (2007), in which the Court held that the EPA has the authority, under the Clean Air Act, to regulate emissions of CO2 as an “air pollutant.”  The proposed resolution effectively seeks to undo this ruling and remove a key tool that allows the Obama Administration to limit greenhouse gas emissions from vehicles and power plants while Congress delays taking action on climate change.

Earlier this week, the Georgia-based environmental law firm GreenLaw and the Southern Environmental Law Center (SELC) filed five administrative challenges to permits and decisions recently issued by the Georgia Environmental Protection Department (EPD), concerning two proposed Georgia coal-fired power plants.  The challenges, all petitions for hearings, were filed on behalf of several southern environmental groups.

Two of the petitions relate to the proposed 1200-MW expansion of the Longleaf power plant in Early County, Georgia, and were filed on behalf of the Friends of the Chattahoochee and the Sierra Club’s Georgia Chapter.  The first alleges that EPD incorrectly labeled the plant a “minor” source, rather than a “major” source, of hazardous air pollutants, while the second challenges EPD’s decision to grant Longleaf an extension of the deadline by which it is supposed to begin construction.  The groups allege these decisions violate the Georgia Air Quality Act and the federal Clean Air Act, and will allow the plant to avoid critical restrictions on its emissions and use outdated emission control technology once construction begins.  (As previously reported on Warming Law, last year a Georgia appeals court cleared the way for the proposed Longleaf expansion to go forward, reversing an earlier court decision that had invalidated the plant’s “Prevention of Significant Deterioration” (PSD) permit for failing to require “best available control technology” for CO₂ emissions.)

The other three GreenLaw/SELC petitions concern the 850-MW “Plant Washington” in Washington County, Georgia, and were filed on behalf of the Fall-line Alliance for a Clean Environment, the Sierra Club’s Georgia Chapter, Altamaha Riverkeeper, Southern Alliance for Clean Energy and Ogeechee Riverkeeper.  The first and second of those petitions allege that EPD’s decisions to allow the plant’s operators to withdraw surface water from, and discharge effluents into, the Oconee River violate the Georgia Water Quality Control Act, the federal Clean Water Act, and Georgia common law. The third challenges EPD’s issuance of a PSD air permit to the plant, alleging the permit fails to set adequate limits on harmful air pollutants in violation of the Georgia Air Quality Act and the federal Clean Air Act.

According to GreenLaw, if allowed to proceed, Longleaf and Plant Washington would bring the total number of coal-fired power plants in Georgia to twelve, a number that includes Plant Scherer in Macon, Georgia – reportedly the largest single source of CO₂ emissions in the country.

Stay tuned to Warming Law for further details.

This week the authors of Warming Law have the honor of appearing on the Climate Desk, a new journalistic collaboration that features and cross-publishes stories about climate change from several online publications, including Slate Magazine, the Atlantic, Mother Jones, Grist Magazine, Wired, Center for Investigative Reporting, and PBS’s Need to Know.

Our piece, entitled “Attractive Nuisance: Can Federal Courts Help Tackle Global Warming?,” tells of the recent success, and historical origins, of the global warming “nuisance” lawsuits we have been tracking for you here at Warming Law.   In addition to discussing the merits and future prospects of the lawsuits themselves, the piece explains how these cases fit into the long, compelling history of courts’ invocation of the common law doctrine of “nuisance” to deal with environmental harms when leaders in Washington have failed to act.

We encourage you to give it a read, here.

by Doug Kendall, President, Constitutional Accountability Center. This article is cross-posted in Grist Magazine and on Text & History.

Following last Friday’s announcement that Justice John Paul Stevens will retire from the Supreme Court at the end of this term, President Obama hailed the Court’s most senior Justice as “an impartial guardian of the law.” This description is certainly accurate, and is perhaps best illustrated by Justice Stevens’ numerous rulings in environmental cases.

First, it is worth remembering that Justice Stevens came to the Court in 1975, at the dawn of the modern environmental movement and amid a heady time for environmentalists in the courts. Just a few years earlier, in a dissent from the landmark case Sierra Club v. Morton (1972), Stevens’ predecessor, Justice William O. Douglas, had famously argued that natural resources such as trees and rivers should have “standing,” positing that if corporations are permitted to represent their interests in court then so too should other inanimate objects. Meanwhile, in cases of statutory interpretation, judges on the powerful U.S. Court of Appeals for the D.C. Circuit had developed a number of doctrines that allowed them to aggressively second-guess agency decision-making in order to realize the broad and ambitious goals of environmental statutes. These developments invigorated environmentalists, but they also introduced a sense of permissive creativity into a rapidly growing body of environmental law, and exposed judges who made pro-environmental rulings to allegations of judicial activism.

Justice Stevens, by contrast, firmly rejected the idea that environmentalism was some sort of transcendental force that gave judges special powers to enforce broad statutory goals on their own and overrule regulatory agencies. Most famously, in Chevron v. NRDC (1984), he wrote a majority opinion for the Court that sternly rebuked the D.C. Circuit for substituting its judgment for that of the Reagan EPA, which had sought to give industry more flexibility in meeting their Clean Air Act obligations. Though a bitter defeat for environmentalists, Chevron, which holds that judges must defer to agencies when they make a reasonable judgment about an ambiguous law, is rightly hailed today as a landmark of both administrative law and judicial restraint.

Those same principles — deference to the plain language of statutes and concern about judicial restraint — are the hallmarks of Justice Stevens’ other landmark environmental rulings, which have rightly earned Stevens the enduring gratitude of the environmental world. In Babbitt v. Sweet Home Chapter Of Communities For A Great Oregon (1995), Justice Stevens wrote for a six -Justice majority in reinstating the portion of the Endangered Species Act that protects endangered species’ habitats, which had been struck down by the D.C. Circuit (which by then had been taken over by Reagan and Bush appointees). This time, Justice Stevens’ opinion corrected the D.C. Circuit’s narrow reading of an environmental statute by finding that the language and intent of the Endangered Species Act was clear in forbidding changes to habitats that will harm endangered species.

In 2002, Justice Stevens wrote another rule-of-law environmental opinion in Sierra Preservation Council v. Tahoe Regional Planning Agency, a “takings” case that followed a 15-year period during which the Court’s conservatives, led by Justice Scalia, had been remarkably inventive in trying to transform the Takings Clause of the Fifth Amendment into a barrier to environmental laws. Rejecting this bending of the Constitution’s meaning, Justice Stevens garnered another six-Justice majority in upholding land-use protections put in place to save Lake Tahoe. The ruling returned the Takings Clause to its more limited role as a guard for securing compensation for landowners when the government exercises its power of eminent domain.

Finally, and perhaps most famously, in Massachusetts v. EPA (2007), Justice Stevens relied on Chevron and the unambiguously broad terms of the Clean Air Act in holding that the EPA may regulate greenhouse gas pollution using its existing authority under the Act. This ruling has allowed the Obama Administration to aggressively combat global warming without waiting for further action by Congress, setting into motion a chain of regulatory actions that has led to the nation’s very first nationwide auto emissions standards aimed at greenhouse gases, and may soon lead to the nation’s first restrictions on CO2 emissions from power plants.

Justice Stevens should be remembered as a great justice in environmental cases, not because he bent the law to favor environmental outcomes, but rather because he insisted that the law itself, which dictates environmental outcomes in many cases, be followed.

Yesterday, automakers filed a motion to dismiss a long-running challenge to a set of California auto emission standards.   The automakers had alleged that California’s so-called “Pavley” standards for greenhouse gas emissions from motor vehicles were preempted by federal law.  In 2008, the automakers lost their case following a trial, and had appealed to the U.S. Court of Appeals for the Ninth Circuit.

As Warming Law readers may recall, the California preemption lawsuit was one of four lawsuits pursued by the auto industry against states that had adopted the Pavley standards from 2004 to 2009.  (The others were brought in Vermont, Rhode Island, and New Mexico.)  The lawsuits became more or less moot, however, last May, when President Obama struck a three-way deal with then-struggling automakers and the State of California, pursuant to which the U.S. agreed to adopt the Pavley standards nationwide (thereby eliminating the preemption argument), and automakers agreed to drop their preemption challenges.

In keeping with this deal, and as we reported last week, the EPA last week adopted the Pavley standards formally –standards  that call for a near 30% reduction in tailpipe greenhouse gas emissions by the time that 2016 models hit the road – but they will not “take effect” until January 2011, when the 2012 model year begins.

As of this writing, no motions to dismiss have been filed in the automakers’ lawsuit against Vermont, which is currently on appeal in the U.S. Court of Appeals for the Second Circuit, but (like the California lawsuit) has been stayed since last summer.  All parties in the Rhode Island case today asked the court to dismiss that case.  Over in New Mexico, however, auto dealers are continuing to pursue their challenge to that state’s emissions standards. Currently, the parties are in the midst of briefing a motion to modify the briefing schedule.  It is unclear if and when auto dealers will drop this challenge.

Stay tuned to Warming Law for follow up.

Today, the EPA announced that it has finalized new auto emissions standards for greenhouse gases.  These new regulations are the result of a three-way deal struck in May 2009 among the Obama Administration, the state of California, and the auto industry, pursuant to which the Administration adopted California’s so-called “Pavley” auto emissions standards nationwide.  The new standards will phase in a near 40% improvement in fuel economy by 2016, eventually producing an average fleet mileage of 35.5 mpg.

Also this week, the EPA released its final reconsideration of the infamous “Johnson Memo.” The new memo confirmed that when the auto emissions standards “take effect,” so too will widely-anticipated emissions control requirements for new or modified coal-fired power plants.  However, in the memo, the EPA explained that the new auto emission standards will not formally “take effect” until the 2012 model year begins (that is, no earlier than January 2, 2011),  meaning that the introduction of power plant regulations will be delayed until early next year.

This week’s announcement regarding power plants represents the latest installment in the long-running saga we at Warming Law lovingly call “the Bonanza Wars.”  Since it’s been awhile, here first is a link to a summary of the Bonanza Wars.   In essence, the tale to date has involved three episodes:

Episode I:  The CO2 Menace – In response to an administrative challenge spearheaded by Sierra Club, the EPA’s Environmental Appeals Board vacated and remanded a permit for an expansion to the “Bonanza” coal-fired power plant in Utah, finding that EPA had not sufficiently explained why the plant did not have to install “Best Available Control Technology” (BACT) for CO2 under the Clean Air Act. Permitting requirements stated that new or modified plants had to include BACT controls for any pollutant “subject to regulation,” but it was not clear whether CO2 – which was subject to monitoring requirements at the time – should be considered “subject to regulation.” The Board thus ordered the EPA to reexamine the permitting language for coal-fired power plants in the Clean Air Act and issue an interpretation of what “subject to regulation” meant for CO2.  It encouraged the Agency to solicit public comments, and to consider the nationwide scope of its decision, before handing down its findings.

Episode II:  The Administrator Strikes Back – Without giving the public any opportunity to comment,  Bush-appointed EPA Administrator Stephen Johnson released a memo ( the “Johnson Memo,” aka “EPA’s Interpretation of Regulations that Determine Pollutants Covered by Federal Prevention of Significant Deterioration (PSD) Permit Program”), finding that CO2 was not “subject to regulation” within the meaning of PSD permitting requirements, and therefore permits for coal-fired power plants did not need to include BACT controls for CO2.

Episode III:  Return of the EPA — In response to a Sierra Club petition to reconsider, and just days after newly-inaugurated President Obama named Lisa Jackson as the new EPA Administrator, EPA announced that it was reconsidering the Johnson Memo, but declined to stay its effectiveness.

Where things stand now: Episode IV

The memo issued this week by the EPA represents the Agency’s official “reconsideration” of the Johnson Memo.  In essence, the EPA affirmed that CO2 is not presently “subject to regulation” for the purposes of the coal-fired power plant permitting requirements. However, the Agency stated that CO2 will be “subject to regulation” once the upcoming auto emissions standards kick in.  (The Washington Post reports that the EPA pushed back the date on which the auto emissions restrictions would “take effect” until next January largely at the request of state and local officials, who are responsible for issuing permits for new power plants, and who stated they needed more time to prepare to implement the new standards.)

Stay tuned to Warming Law for more updates on auto emissions standards and the Bonanza saga.