Appeals court finds arguments against EPA’s greenhouse gas Tailoring Rule illogical

Posted on July 20, 2012


Part four of a series.

On June 26, 2012, the DC Circuit Court of Appeals rejected 26 separate requests by various states and industry groups to overturn the Environmental Protection Agency’s (EPA) greenhouse gas regulations. The Court found that the Endangerment Finding was well supported by the scientific facts and that the Clean Air Act compelled the EPA to regulate motor vehicle and stationary source emissions of greenhouse gases (GHGs). But the Court also found that the states and industry groups failed to establish their legal standing to request that a third component of the regulations, the EPA’s Tailoring Rule, be overturned.

The Tailoring Rule is the EPA’s attempt to relieve the “overwhelming permitting burdens” that would be caused by immediate full enforcement of the Clean Air Act’s statutory thresholds. Those burdens would include an increase in permit applications from “280 per year to over 81,000 per year,” the hiring of an additional 230,000 new EPA employees to service the applications, and an additional $21 billion in costs. Instead of permitting these absurd burdens to occur, the EPA wrote the Tailoring rule to gradually phase in the Clean Air Act’s thresholds, starting with the largest GHG emitters.

The states and industry groups disagreed with the EPA. The Court disagreed with the states and industry groups, finding their arguments illogical.

States and industry groups lack legal standing to challenge Tailoring Rule

In order to challenge the regulations described in the EPA’s greenhouse gas Tailoring Rule, the industry groups must establish what is known as legal standing. The Court describes what is necessary for someone to establish that they have standing:

To establish standing, a petitioner must have suffered an “injury in fact” that is 1) “concrete and particularized… [and] actual or imminent, not conjectural or hypothetical,” 2) was caused by the conduct complained of, and 3) is “likely, as opposed to merely speculative [to] be redressed by a favorable decision.”

In the opinion of the Court , however, the industry groups have “failed to establish that the [Tailoring Rule] caused them “injury in fact,” much less injury that could be redressed by the Rules’ vacature.”

There are several reasons for this. The first is that it’s not the Timing Rule that is hypothetically causing injury to the industry groups, but rather the “automatic operation of the [Clean Air Act]” itself. But this isn’t all. The Tailoring Rule actually makes regulations less onerous, not more, and so it’s illogical of the industry groups to claim that vacating the Tailoring Rule would result in removing their injury. As the Court said, “if anything, vacature of the Tailoring Rule would significantly exacerbate Petitioners’ injuries.”

And it’s illogical for someone to request the overturning of a regulation in order to be exposed to even greater injury. But as illogical as this industry argument was, the next argument flies in the face of probability and political reality.

States claim that Congress will naturally step in and fix the problem

One of the ways that the states tried to establish standing was to “counterintuitively suggest they actually want EPA to immediately” the full thresholds (which are much lower than the Tailoring Rule thresholds defined) set in the Clean Air Act. The states’ predict that this will mitigate their alleged injuries because “Congress will be forced to enact “corrective legislation” to relieve the overwhelming permitting burdens.”

The Court’s response was unusually brusque: “This theory fails.”

The Court gives several reasons that they reject this entire argument. First, they seriously question whether Congress enacting legislation can ever be considered “likely.” And as a measure of how wrong the Court felt this argument is, they quoted Schoolhouse Rock (see the video below), writing that

As a generation of schoolchildren knows, “by that time, it’s very unlikely that [a bill will] become a law. It’s not easy to become a law.”

Second, the states were not able to prove that their hypothetical legislative remedy was “likely, as opposed to merely speculative.” As the Court wrote, “all of this is guesswork, which is precisely the point.” And guesswork isn’t sufficient to establish legal standing.

States claim that they’re so afraid of climate change that they want more regulation

Throughout the entire petition up to this argument, the states claimed that the EPA was overreaching and that the impacts and in fact the reality of climate change were too uncertain to justify the Endangerment finding or regulating GHGs in any way. Yet this final argument turns the entire body of prior claims upon its head by arguing that the states actually “want more regulation, not less, and that they wanted regulation sooner rather than later.”

Not only does the states’ “asserted fear of global warming stands in stark contrast to the position they took throughout this litigation,” but the states’ approach in this argument is to claim an “entirely new injury (and thus, an entirely new theory of standing)” in a response to other arguments.

The Court rejected this approach, writing that it was “aware of no authority” that permitted the states to do what they were claiming. The court found that this new claim, new injury, and new argument for standing was “completely without merit.”

Illogical state objection to Timing Rule

In case there was any question about whether the three judge panel had lost patience with the states and industry groups, the Court focused briefly on a request to overturn the Timing Rule. This is the rule that delayed the application of the various regulations until after the Tailpipe Rule took effect on January 2, 2011. The Court about this odd request

[the states] confusingly us to vacate “[t]he Tailoring and Timing Rules,” although it is unclear what practical effect vacature of the Timing Rule would have.” [emphasis added]

Especially given the case was argued before the appeals court on February 28 and 29, 2012 – over a year after the Timing Rule went into effect.

Throughout the entire appeals court Opinion, it was clear that the Court found the states and industry groups’ arguments unconvincing. But it wasn’t until the Court turned its attention to the arguments made in an attempt to overturn the Tailoring and Timing Rules that the Court called the arguments “confusing” or indicated that they were entirely illogical. But that’s what the Court essentially did with all four arguments used in a vain attempt to demonstrate standing to seek the overturning of the Rules.

There is a lesson here for future attempts, if there are any, to challenge the Tailoring Rule: you know that you’ve lost the argument when the judge quotes the children’s program Schoolhouse Rock.


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