DC appeals court ruling will prove difficult to overturn, largely ignored by conservatives

Posted on July 23, 2012

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Part five of a series.

On June 26, 2012, the DC Circuit Court of Appeals ruled that the Environmental Protection Agency’s (EPA’s) greenhouse gas regulations were in accordance with the Clean Air Act and the Supreme Court’s 2007 Massachusetts v. EPA ruling. But more than that, the appeals court so strongly worded their opinion, and based it so firmly in long established court precedents and the Supreme Court’s own ruling that it will be very difficult to overturn. These facts were largely ignored by the Attorneys General of the states of Texas and Virginia, and the vast majority of prominent conservative think tanks and conservative media outlets simply ignored the ruling altogether.

The Court’s opinion is very strongly grounded in existing precedent. The court relied on many old precedents that have guided court decisions regarding the Clean Air Act since its inception in 1970. For example, When the Court wrote that the Clean Air Act required that the EPA act proactively, the Court relied on two decisions made decades ago, namely Ethyl Corp. v. EPA from 1976 and Lead Industry Association, Inc. v. EPA from 1980.

But beyond the fact that long established precedents support the Court’s Opinion, so does the Supreme Court ruling in Massachusetts v. EPA, which is referenced and quoted dozens of time throughout the 82 page opinion. But just as important is the fact that, even if this case is appealed to the Supreme Court, there is little chance that the outcome would change the opinion. The reason for this is that the ideological makeup of the court has remained constant since the original decision in 2007. Unless Justice Kennedy were to switch sides, the Supreme Court would rule the same in a new challenge to the EPA as it did in the last challenge.

As expected, many conservatives and representatives for the states and industry groups who brought the suit were unhappy with the outcome. Texas Attorney General Greg Abbott was quoted in the LATimes as saying that the ruling had “failed to rein in the unelected bureaucrats at the agency who are holding our country’s energy independence and fragile economy hostage to a radical environmental agenda.” Another Texan, Bryan Shaw, chairman of the state environmental commission, was quoted in the Statesman as saying that the greenhouse gas regulations would “result in no environmental benefits whatsoever,” a point with which the court specifically disagreed.

Ken Cuccinelli, Virginia Attorney General, was quoted in the Times Dispatch as saying “I do not believe the Supreme Court intended to compel such a pointlessly destructive interpretation of the Clean Air Act, and because only the Supreme Court can clarify its prior ruling, Virginia intends to petition the Supreme Court to review the case.” As mentioned above, however, the Opinion is firmly based on both the Massachusetts v. EPA decision, in long established precedent, and also in the plan and unambiguous language of the Clean Air Act.

Cuccinelli was further quoted as saying that

“given the uncertain nature of the scientific evidence to begin with,” Virginia also intends to appeal the EPA’s decision not to reconsider its endangerment finding decision and reopen the record for further public comment.

Unfortunately for Cuccinelli, the Court specifically rejected both of these complaints. The Court found that there was no more than “residual uncertainty” in the EPA’s scientific judgment (aka the Endangerment Finding), and that residual uncertainty was far too low a standard to overturn the Endangerment Finding. And the Court also found that the EPA had supported its rejection of 10 petitions to reopen the Endangerment Finding with 373 pages of additional scientific support.

While representatives of two of the states bemoaned the Court’s Opinion, only a few conservative and/or libertarian think tanks even mentioned it. One industry group that attacked the regulations, the US Chamber of Commerce, didn’t even bother to mention the ruling. Neither did the American Enterprise Institute, Americans for Prosperity, the Competitive Enterprise Institute, the Heartland Institute, the National Center for Policy Analysis, the National Center for Public Policy Research, the Property and Environment Research Center, or Reason. Only the Heritage Foundation and the Cato Institute even mentioned that the Court had issued an opinion. Perhaps the appeals court’s opinion was lost in the shuffle following the Supreme Court’s upholding of the Affordable Care Act, but perhaps there was another reason.

Perhaps they wanted to pretend the Opinion hadn’t happened, as The Daily Caller apparently did. At the end of September, 2011, the Daily Caller (along with Fox News and climate disruption denier Sen. James Inhofe of Oklahoma) misrepresented the EPA’s court filings and wrote that the EPA wanted to hire hundreds of thousands new employees and would need billions of new tax dollars to service the greenhouse gas regulations. In reality, the EPA was writing that it wanted to avoid those things, but the Daily Caller and Sen. Inhofe never corrected their false statements.

The appeals court quoted from those EPA filings and wrote that the EPA was trying to avoid hiring hundreds of thousands new employees and needing billions of new tax dollars to service the greenhouse gas regulations. So while the Court didn’t specifically refer to the false claims against the EPA in the media, it nonetheless debunked them. As of today, the Daily Caller has not corrected its original stories nor acknowledged that the court even issued its opinion.

The importance of this opinion by the DC Circuit Court of Appeals is difficult to overestimate. It was so strongly worded and so firmly grounded in long established precedent that it will be difficult to overturn. Moreover, even if Cuccinelli or Abbott or the US Chamber of Commerce choose to appeal it to the Supreme Court, it quoted so extensively from the Massachusetts v. EPA ruling that it is unlikely to be overturned until and unless the Supreme Court gets another conservative justice.

Given these facts, the opinion ultimately means that the EPA’s greenhouse gas regulations will stand for a minimum of two more years, regardless of who wins the Presidency and control of the Senate in November. If Obama wins the election, then he can veto any legislation that rewrites the Clean Air Act to remove greenhouse gases from the EPA’s regulatory authority. If Romney wins the election and Democrats retain the majority of the Senate, then any rewrites will die in the Senate. Only if Romney wins and Republicans take control of the Senate is a rewrite possible, but it would take major shift of seats from Democrats to Republicans for Democrats to lose their filibuster power to block rewrites. And while it’s certainly possible for Republicans to win the Senate in November, no projection surveyed by S&R had the Republicans with more than 53 seats, far short of the filibuster-proof majority they’d need to rewrite the Clean Air Act.

All of which means that the regulations, and all the permitting and fuel efficiency improvements that result from them, will have been in place for a minimum of four years (January 2011 to January, 2015, when the 114th Congress will be seated following the next President’s midterm elections). At that point, the regulations will have been in place long enough to have some evidence of their economic impacts, positive or negative. If history is any guide, however, the industry groups who claim that these new limits will destroy the economy will turn out to be as wrong as those made about acid rain limits.

The US economy didn’t collapse because of acid rain being strictly limited, or because smog controls were required in all new motor vehicles. It won’t collapse because of greenhouse gas limits either.

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