Good week for Obama in the courts: challenges to climate change regulation also fail

29 June 2012 by David Hart KC

Coalition for Responsible Regulation v. EPA US Federal Court of Appeals, DC, 26 June 2012, read judgment

This week, two big decisions which will have come as a relief to the President. The US Supreme Court did not strike down his healthcare law (judgment here), and, to the subject of this post, neither did the Federal Courts of Appeal in Washington  declare invalid key greenhouse gas rules set by the Environmental Protection Agency. This saga is a perfect illustration of how closely law and politics get intertwined in the US.

As I pointed out in my previous post, Massachusetts v. EPA (549 U.S. 497 (2007)). told the EPA that it had a duty to regulate  greenhouse gas (GHG) emissions because they were “any air pollutant” within the meaning of the Clean Air Act – as two prior general counsels had repeatedly told it. The EPA (under the previous administration) needed to be taken to the Supreme Court before responding. Thereafter, the EPA, with a new head appointed after Obama’s election, reached an Endangerment Finding, to the effect that GHGs may “reasonably be anticipated to endanger public health or welfare”. In the pellucid prose of this Court,

Next, it issued the Tailpipe Rule, which set emission standards for cars and light trucks. Finally, EPA determined that the CAA requires major stationary sources of greenhouse gases to obtain construction and operating permits. But because immediate regulation of all such sources would result in overwhelming permitting burdens on permitting authorities and sources, EPA issued the Timing and Tailoring Rules, in which it determined that only the largest stationary sources would initially be subject to permitting requirements.

Industry and a whole host of states (no prizes for guessing which fossil fuel producing states were in support) sought to challenge these rules.

The challengers said that the current EPA administration arrived with “pre-formed convictions that human GHG emissions are causing significant and harmful global climate change.” It says that the EPA relied almost exclusively upon the IPCC and others, which it was impermissible to do. So the EPA made no independent judgment. The petitioners’  brief was nothing if not bullish:

The evidence on which EPA relies reveals profound uncertainty, yet EPA finds profound certainty. This discrepancy is the essence of arbitrary and capricious decision-making.

The Court was having nothing of this. The judgment, which (whatever you think of its merits) is an exemplar of clear decision-making, contains this firm slap-down

This argument is little more than a semantic trick. EPA did not delegate, explicitly or otherwise, 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: it sought out and reviewed existing scientific evidence to determine whether a particular finding was warranted. It makes no difference that much of the scientific evidence in large part consisted of “syntheses” of individual studies and research. Even individual studies and research papers often synthesize past work in an area and then build upon it. This is how science works. EPA is not required to re-prove the existence of the atom every time it approaches a scientific question.

It is plain that the challengers got nowhere in their contention that it was arbitrary to conclude that GHGs led to climate change. Another argument, a familiar one for defendants, was to say that because the EPA could not state the point at which GHG concentrations became a danger, it was all too uncertain to make any rules about them at all. Again, a stinging return of service from the Court

In its essence, Texas’s call for quantification of the endangerment is no more than a specialized version of Industry Petitioners’ claim that the scientific record contains too much uncertainty to find endangerment. EPA relied on a substantial record of empirical data and scientific evidence, making many specific and often quantitative findings regarding the impacts of greenhouse gases on climate change and the effects of climate change on public health and welfare. Its failure to distill this ocean of evidence into a specific number at which greenhouse gases cause “dangerous” climate change is a function of the precautionary thrust of the CAA and the multivariate and sometimes uncertain nature of climate science, not a sign of arbitrary or capricious decision-making.

The petitioners’ argument in which many commentators had had faith before the judgment was the Tailoring Rule about stationary sources of GHGs. The CAA said that facilities needed to be regulated if they emitted 100 or 250 tonnes per year of any air pollutant, depending on the types of  facility involved. The limit was obviously aimed at the more typical industrial pollutant. The EPA’s response was to “tailor” its rule, namely to regulate only those facilities which emitted 100,000 or 75,000 tonnes per year, again depending on type. Without this tailoring, it would have to regulate some 6.1 million sources in need of permits. Here, the coal and oil-producing states who supported the challenges claimed to be concerned that the Rule was under-regulating industry. Unlawful, they cried, because the Rule did not match the Act under which it purported to be made, and the EPA’s attempts to alleviate the burden on the small emitter “establish only that EPA is acting as a benevolent dictator rather than as a tyrant.”

The Court’s response to this argument was cunning indeed. The US has rather stricter rules as to standing than English claimants enjoy, one of which involved showing that the claimant suffered “injury in fact”. How could industry petitioners suffer injury in fact if they were being less regulated than they otherwise would have been? State petitioners ran two arguments to establish such standing;

Admitting that vacature of the Tailoring Rule would result in astronomical costs and unleash chaos on permitting authorities, State Petitioners predict that Congress will be forced to enact “corrective legislation” to relieve the overwhelming permitting burdens on permitting authorities and sources, thus mitigating their purported injuries.

The enactment of such corrective action even it got into Bill form, the Court said, was entirely speculative – by reference to a charming cartoon video, Schoolhouse Rock, I’m Just a Bill” for which the Court also obligingly provided a link.

The second argument by the state petitioners asserted that even if their costs went up as a result of this extra enforcement, the states suffered loss as a result of the EPA not regulating sooner. But hang on, said the Court, how does this fit with your case that the Endangerment Finding was a “subjective conviction” etc etc. And you have not put forward any evidence that your states would indeed be affected by global warning, unlike, say, Massachusetts in the case which triggered this whole cascade of regulation. So ruling that the petitioners did not have standing, the Court did not need to meet the merits of this claim.

So that is where things stand at the moment. Major emitters of GHGs do need regulation. But for how long? By the end of the year the US could find itself with a new president, and thereafter, the EPA with new leadership. And my image at the head of this post alludes to one of the political challenger’s bon mots on the question of carbon emissions. He admitted that he was a serial exhaler of carbon dioxide, and he is no friend of the current regulator

the E.P.A. has gotten completely out of control for a very simple reason. It is a tool in the hands of the president to crush the private enterprise system, to crush our ability to have energy whether it’s oil, gas, coal or nuclear.

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