All (climate concerned) eyes on D.C. court


For environmental law wonks, the debate unfolding in a Washington, D.C., federal appeals court this Tuesday and Wednesday is the courtroom equivalent of the Super Bowl: the stakes are high and everyone is watching.

Playing offense are a few states, including Texas, Utah and North Dakota, along with Big Coal, Big Oil, Big Ag, the U.S. Chamber of Commerce, and a mysterious entity calling itself the Coalition for Responsible Regulation

. They're attempting to stop the Environmental Protection Agency from regulating greenhouse gases under the Clean Air Act, and have filed lawsuits challenging a suite of new EPA rules aimed at cutting those emissions. Now, all of those cases have been lumped together for the U.S. Court of Appeals for the D.C. Circuit to consider. Helping the EPA defend itself are environmental groups, states like Massachusetts and California, the Union of Concerned Scientists, and notably, automakers.

I'll get to the specifics in a minute, but first, here's the high-level view of why the rules under fire matter: With Congress continuing to brush off its responsibility to do something -- anything -- about climate change, they represent the most genuine effort at the federal level to cut U.S. carbon emissions. According to the Environmental Law Institute, the court's decision in this case has "the potential to halt, delay, modify, or greatly increase the scope of greenhouse gas regulation under the Clean Air Act. The stakes are among the highest in recent environmental litigation."

In 2007, the Supreme Court ruled in Massachusetts v. EPA that EPA could regulate carbon dioxide as a pollutant under the Clean Air Act if the body of scientific evidence demonstrated that it endangered public health and welfare. Two years later, after reviewing a fat stack of climate literature, the agency concluded that CO2 and five other greenhouse gases did pose such a threat -- a move since dubbed the "endangerment finding." It's the first thing the opponents of EPA greenhouse gas regulation have challenged, claiming EPA didn't sufficiently consider the uncertainties of climate science, or made procedural missteps in arriving at the finding. If they win, the EPA would lose its authority to regulate CO2 altogether. Most observers, however, think that's unlikely.

Next up for the court to consider are the Obama administration's clean car standards, also known as the "mobile source rule," which set the bar for how many miles per gallon vehicles must get and how much pollution they can belch from tailpipes. In 2010, the EPA and the National Highway Traffic Safety Administration finalized new fuel economy and greenhouse gas pollution standards for 2012 - 2016 model year vehicles. Car makers support the regulations, because without a federal standard, they'd have different bars to meet in different states, which would muck up manufacturing.  

So who's quipping? Brad Plumer, of the Washington Post's Wonk Blog, explains:

For energy companies, however, the main significance of the mobile source rule is that once it came into effect, greenhouse gases officially became a regulated pollutant under the Clean Air Act. That means that anyone who wants to build a large new power plant or factory that emits carbon has to go through the permitting process under the Clean Air Act and show that they’ll use the “best available control technology” on greenhouse-gas pollution. If courts struck down the mobile source rule, then these requirements could be delayed temporarily.

Finally, the court will hear arguments over what's called the "tailoring rule," which pencils out which carbon polluters will be regulated. For years, a "large" facility such as those Plumer describes was defined as one that annually emits 100 or 250 tons of a regulated pollutant, depending on the type of facility. But because carbon dioxide is spewed in much larger amounts than most other pollutants, if that same standard were applied to it, the suite of regulated facilities could include not only power plants but small farms, schools, churches and office buildings. It would amount to, for lack of better words, a regulatory cluster&*^!. So the EPA "tailored" the threshold for carbon dioxide, so that only new facilities emitting more than 100,000 tons per year, and existing facilities increasing their emissions by 75,000 tons per year would have to obtain permits and install best available controls. 

It was a sensible, but not insignificant, change to the terms of the act, and those challenging the rule argue EPA didn't have the authority to rewrite "unambiguous statutory thresholds." It's a strategy Plumer describes as, "creating total chaos by killing the 'tailoring rule.' " He explains: "Essentially, the plaintiffs would prefer that the EPA rules hit everyone and bring about an apocalyptic scenario, putting pressure on Congress and the Obama Administration to scuttle the climate rules entirely."

Frighteningly enough, it's also the rule that many believe is most vulnerable in court.

Cally Carswell is HCN's assistant editor

Photo: A Utah power plant, courtesy of Flickr user Loco Steve.

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