Historical context behind the court ruling that the EPA may regulate greenhouse gases

Posted on July 17, 2012

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Part one of a series.

On June 26, 2012, the United States Court of Appeals for the District of Columbia ruled against various states and industry groups who had asked the Court to stop the Environmental Protection Agency’s (EPA’s) greenhouse gas regulations. The 26 petitions specifically asked the Court to do one of two things – either overturn the EPA’s finding that greenhouse gases posed a risk to public health and welfare (aka the “Endangerment Finding”), or block enforcement of any regulations based on that Endangerment Finding. A three judge panel led by a Reagan appointee unanimously dismissed the arguments made in the 26 petitions for lack of merit or lack of legal standing. (Ed. Note: Some of the legal terms used in this post are defined at the bottom of the post.)

Over the next several days, S&R will be publishing a series of articles on this opinion, starting with some background on what led up to the June 26 opinion.

Leading up to the Massachusetts v. EPA ruling

The story begins in October, 1999, when 19 private environmental organizations petitioned the EPA to regulate greenhouse gases (GHGs). They petitioned the EPA in part because two of the EPA’s General Counsels has voiced opinions that carbon dioxide (CO2) emissions were “within the scope of EPA’s authority to regulate,” even if the EPA had not yet done so.

The petitioning organizations specifically asked the EPA to regulate GHGs under Section 202 of the Clean Air Act, the part of the Act that is responsible for motor vehicle pollution. In the event that the EPA found that certain GHGs were “air pollutants” as defined by the Act, the EPA would then be forced to regulate motor vehicle emissions of the GHGs and also to develop regulations for GHG emissions from major stationary sources of the new pollutant such as coal-fired power plants, industrial furnaces, and the like.

But when George W. Bush became President, the EPA became more “skeptical” of climate change, and on September 8, 2003, the EPA rejected the petition, citing two reason. First, the more conservative EPA disagreed with the legal opinions of the two Clinton-era General Counsels and argued that if Congress had meant the EPA to include climate disruption in the Clean Air Act, Congress would have explicitly done so in 1990 when it last updated the Act. Second, the EPA argued that even if the first argument was wrong, regulating GHGs was a bad idea because it could negatively impact the President’s ability to conduct foreign affairs and because regulations could stifle technological and scientific innovation. In addition, the Bush-era EPA claimed that “a causal link between the [greenhouse gas emissions and climate change] cannot be unequivocally established.”

The organizations who had petitioned the EPA in 1999, now joined by the state of Massachusetts, sued the EPA and asked the DC Circuit Court of Appeals to overturn the EPA’s decision. The appeals court refused to do so on July 15, 2005, with a three judge panel composed of Judges Sentelle, Randolph, and Tatel deciding two to one that the petitioners lacked legal standing to sue the EPA in federal court.

On November 29, 2006, the case was argued before the United States Supreme Court.

Massachusetts v. EPA

On April 2, 2007, the Supreme Court issued its ruling. It found in a 5-4 decision authored by Justice Stevens that the EPA’s rejection of the petition in 2003 was “arbitrary, capricious, or otherwise not in accordance with law,” and as such the Supreme Court had the authority under the Clean Air Act to review the EPA’s decision. The majority opinion firmly rejected nearly every argument the Bush-era EPA made.

The Court first reviewed the Clean Air Act’s definition of what constitutes an “air pollutant.” The Act defines “air pollutant” as “any air pollution agent or combination of such agents, including any physical, chemical, biological, radioactive… substance or matter which is emitted into or otherwise enters the ambient air. [emphasis added]” The Court concluded that the Act was “unambiguous” and that the GHGs the petitioners had asked to have reviewed were “physical [and] chemical … substance[s] which [are] emitted into … the ambient air.” Put simply, the Court ruled that “any” really does mean “any,” and that the EPA didn’t get to pick and choose.

The Court then rejected an EPA contention that regulating GHGs under the Clean Air Act would run afoul of the Department of Transportation’s authority to set motor vehicle fuel efficiency standards. The Court found that just because the DoT sets mileage standards, that “in no way licenses EPA to shirk its environmental responsibilities” to protect the public health and welfare as required by the Clean Air Act.

When the Court turned to the second justification for why the EPA rejected the original petition, namely that regulating GHGs would be “unwise,” they soundly rejected the entire idea. The majority found that the EPA’s argument “rests on reasoning divorced from the statutory text” and that just because the EPA is permitted to use its judgement doesn’t mean that it has “a roving license to ignore the [Clean Air Act].”

The Court also rejected two more of the EPA’s “laundry list of reasons not to regulate.” The first was that doing so would impact President Bush’s foreign policy The Court wrote that the foreign policy reason had “nothing to do with whether greenhouse gas emissions contribute to climate change” and that the claim did not “amount to a reasoned justification for declining to form a scientific judgment (emphasis added).” The Court concluded that the President’s authority to set foreign policy “does not extend to the refusal to execute domestic laws.”

The second of the “laundry list” was that there was too much uncertainty in the science to regulate under the Clean Air Act. The Court rejected this argument because it was circular – the hypothetical conclusion of a scientific judgment can’t be used to justify not forming the judgment in the first place. Specifically, the Court wrote

If the scientific uncertainty is so profound that it precludes EPA from making a reasoned judgment as to whether greenhouse gases contribute to global warming, EPA must say so. That EPA would prefer not to regulate greenhouse gases because of some residual uncertainty… is irrelevant. The statutory question is whether sufficient information exists to make an endangerment finding.

When the Supreme Court found that the rejection of the 1999 petition was “arbitrary, capricious, or otherwise not in accordance with law,” it based that decision firmly in the plain, blunt language of the Clean Air Act. And the Act permits the EPA to “avoid taking further action only if it determines that greenhouse gases do not contribute to climate change or if it provides some reasonable explanation as to why it cannot or will not exercise its discretion to determine whether they do.” The Bush-era EPA failed to meet this standard, and so the Supreme Court mandated that the EPA actually do so.

The EPA’s Endangerment Finding under the Clean Air Act

As a result of the Supreme Court decision, the EPA was required to determine whether or not greenhouse gases could “reasonably be anticipated to endanger public health or welfare,” the standard defined by the Clean Air Act. If the risk to public health or welfare was sufficiently high, then the EPA was required to issue an Endangerment Finding.

By 2009, the EPA had concluded that yes, there was sufficient evidence that greenhouse gases were a threat to public health and welfare, and as a result they published their 56 page Endangerment Finding. The Endangerment Finding was supported by 210 pages of Technical Support Documentation that referred extensively to the work done by the National Research Council, the United States Global Change Research Program, and the Intergovernmental Program on Climate Change. As required by law, the EPA requested public comment, and then generated an additional 620 pages of official responses to the thousands of comments generated in response to the Endangerment Finding.

What the EPA found was that “greenhouse gases in the atmosphere may reasonably be anticipated both to endanger public health and to endanger public welfare,” and thus should be defined according to the Clean Air Act as “air pollutants.” The EPA then ruled that, since most motor vehicles emit GHGs during their operation, vehicles would need to be regulated accordingly. And once motor vehicles were found to be a source of air polluting GHGs, the Clean Air Act requires that the EPA regulate “major stationary sources” such as power plants, cement kilns, and other non-motor vehicle sources of GHGs.

On May 13, 2010, the EPA published their regulatory Tailoring Rule. This rule defined the thresholds that the EPA would use to identify the first round of “major stationary sources” that would be required to purchase GHG emission permits. The Rule set the emission thresholds well above the legally require thresholds set by the CAA, but the EPA justified their decision by pointing out the administrative difficulties in immediately applying the full CAA thresholds to every stationary source of GHGs. Instead, the EPA chose to go for a “step-by-step” or phased-in approach, intending to gradually reduce the GHG emission threshold to slowly add new stationary sources until the full CAA thresholds were met.

As a result of the Endangerment Finding, various states and industry groups filed 10 petitions asking the EPA to reconsider the Endangerment Finding. The EPA refused to do so on July 29, 2010 and explained their refusal with an additional 373 pages of supporting documentation. Shortly thereafter the first of what would become 26 lawsuits against the EPA was filed.

The 26 petitions to the DC Court of Appeals argued essentially three things. First, they claimed that the Endangerment Finding was “arbitrary and capricious” for a variety of reasons. Second, they claimed that the EPA did not correctly interpret the Clean Air Act. And third, they claimed that Tailoring Rule should be overturned because the EPA lacks authority under the Act to tailor the Act’s requirements.

On June 26, 2012, a three judge panel of the DC Court of Appeals composed of Judges Sentelle, Rogers and Tatel (two of whom had been on the panel that rejected the initial Massachusetts v EPA petition in 2005) resoundingly rejected all three arguments.

Definitions:

Arbitrary: A decision that was made without regard for facts or circumstances and with a disregard for evidence (source).
Capricious: A decision that was made based on what the decisionmaker wanted to do, rather than what the evidence said was appropriate (source).
Endangerment Finding: According to Section 202(a)(1), the Administrator of the EPA is mandated to regulate any air pollutant that “in his judgment cause[s], or contribute[s] to, air pollution which may reasonably be anticipated to endanger public health or welfare.” When an air pollutant is identified as endangering public health or welfare, that’s an “endangerment finding.” In the case of this and related articles, the “Endangerment Finding” is the EPA’s finding that a combination of six greenhouse gases in particular qualify as an air pollutant as defined by the Clean Air Act.
Petition/Petitioner(s): A request to the Federal Courts for redress of grievances is known as a “petition,” and the term comes from the First Amendment of the United States Constitution. A “petitioner” is an individual, state, or organization that has petitioned the government for redress of grievances.
Standing: This is the law doctrine that states that only people who have been injured in some way have the right to sue for damages or changes to the law. Individuals who do not have a stake in the outcome of the suit are not permitted to enter into a lawsuit because they lack “standing.” For much more information, please see the definition at the Free Dictionary’s Legal Dictionary.

Image Credits:
United States Court of Appeals for the District of Columbia Circuit
Duncan Lock, via Wikipedia

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