INSIGHT: Lawsuits to challenge EPA’s carbon ruling

10 December 2009 15:57  [Source: ICIS news]

By Joe Kamalick

EPAWASHINGTON (ICIS news)--A lawsuit challenging the Environmental Protection Agency’s (EPA) authority to regulate greenhouse gases will be filed in a matter of weeks, and an effort to bar EPA from such regulation is gaining support in the US House.

EPA’s long-anticipated announcement earlier this week that carbon dioxide (CO2) and other greenhouse gases pose a threat to human health and must be regulated has lit fuses on a variety of potentially explosive counter-attacks.

Just as the agency’s greenhouse gases ruling could well bring a halt to US energy development and choke off construction activity in almost every sector of the economy, an expected flurry of counter-attack lawsuits could bring much environmental regulation to a standstill.

On Monday this week the EPA said that “after a thorough examination of the scientific evidence and careful consideration of public comments” it finds that “greenhouse gases threaten the public health and welfare” because they are causing global warming.

That so-called “endangerment finding” opens the way for the EPA to begin regulating - limiting and otherwise restricting - emissions of CO2 and other greenhouse gases under the Clean Air Act (CAA).

The US Supreme Court ruled in 2007 that the EPA has authority under that law to regulate carbon dioxide if the agency finds that CO2 and other greenhouse gases “endanger” public health. The EPA issued its proposed endangerment finding in April.

US business interests have argued, however, that the EPA lacks sufficient scientific basis to rule that CO2 is a pollutant within the meaning of the Clean Air Act.

As soon as EPA announced its endangerment finding, the Competitive Enterprise Institute (CEI) jumped into the fray, saying it soon will file suit to challenge the endangerment finding and have it overturned by the federal courts.

Sam Kazman, the institute’s general counsel, said CEI will file suit in about 60 days or less, targeting the agency’s scientific basis for its contention that atmospheric CO2 poses a danger to human health.

“That finding was arbitrary and capricious,” Kazman said.

“You have an agency that is relying on complex computer models predicting increasing global temperatures, and the agency should have taken steps to ensure that those models were reliable,” Kazman said. “And the fact that there has been no warming for ten or 15 years certainly goes against the reliability of those models.”

Kazman was referring to records showing that global temperatures have flat-lined or not risen since 2001, a plateau that environmentalists say is short-term, arguing that the overall trend in warming will resume.

Kazman contends that the scientific basis for EPA’s endangerment finding is shaky at best and certainly does not warrant the kind of massive regulatory undertaking and potential economic dislocation that will flow from the agency’s finding.

“EPA also has been cursory in dismissing the climate-gate material,” he added, referring to the thousands of newly disclosed e-mails and other documents from environmental scientists indicating they hid, altered or discarded data that was in conflict with their theories of anthropogenic - human-caused - global warming.

“The science underlying EPA’s endangerment finding was tampered with,” Kazman said, noting too that earlier this year EPA effectively silenced one of its own analysts who challenged accepted global warming theories.

“The Obama administration came into office declaring that it would be the most open and most transparent government in history, and specifically that in this administration science would never take a back seat to ideology,” Kazman said.

“But in this EPA finding, not only was science taking a back seat to ideology, it was bound and gagged and tossed into the trunk,” he added.

Kazman said he expects others to file suits challenging the EPA endangerment finding, and a flood of litigation is expected once the agency begins to take enforcement actions based on that finding.

The US Chamber of Commerce has said it will file suit against the EPA challenging the endangerment finding.  Although the chamber has not yet disclosed the nature of its case, the business group is likely to argue, among other things, that the agency illegally rejected the many requests for a public hearing on CO2 endangerment that the chamber and others filed.

Jeff Holmstead, a lawyer and former EPA assistant administrator for air quality and now head of the environmental practice unit at Bracewell & Giuliani, said he expects that a broad range of EPA permitting processes based on the endangerment finding will be challenged in court at both the federal and state levels by both industry and environmental groups.

“Under the Clean Air Act, once a new pollutant is subject to regulation, permits are required based on a project’s compliance with that regulation,” he noted.

“Environmental groups have already challenged every significant energy project launched over the last several years, and the CO2 finding will add a lot more uncertainty,” he said.

“For example, some companies [pursuing energy projects] have EPA permits but have not yet begun construction, or if built they are not yet operational, and environmentalists are already arguing that those companies have to re-file now under the CO2 regulations.”

Holmstead noted too that under the Clean Air Act and depending on the type of project being considered, permits are sometimes issued by state governments and sometimes by federal authorities and sometimes by both.  All are likely to face court challenges under the EPA CO2 ruling.

“It will be a big mess,” he said. “This will put some more pressure on Congress to step in and say that legislation is the way to go, so let’s put this mess on hold for a while.”

“The Obama administration is adamant about not wanting to do that, not wanting to pull EPA back from regulating greenhouse gases,” Holmstead said. 

Indeed, President Barack Obama and EPA Administrator Lisa Jackson have said they would prefer that Congress take action on greenhouse gas controls rather than the agency, and both clearly are using the EPA endangerment finding to prod legislators.

“But if the administration sees that all construction activity in the US is brought to a standstill by this finding - which is a real possibility - they’ll be under a lot of pressure to avoid that,” Holmstead said.

The Associated General Contractors of America (AGCA) said this week that the uncertainty raised by EPA’s endangerment finding “will put every single construction project in America on standby until federal bureaucrats decide whether to grant Clean Air Act permits”.

The EPA finding will throw tens of thousands of construction workers out of work “and stifle economic growth for decades to come”, the contractors group said.

Enter now a very small piece of legislation authored by Representative Marsha Blackburn (Republican-Tennessee), HR-391.

That two-page bill would simply amend the Clean Air Act by saying that the act’s definition of “air pollutant” does not include CO2 or any other greenhouse gas and that “nothing in the Clean Air Act shall be treated as authorizing or requiring the regulation of climate change or global warming”.

If approved by Congress and signed by the president - both considerable long shots it would seem - that measure would simply take EPA out of the business of regulating greenhouse gases and give Congress time to sort out how to deal with those emissions.

Not surprisingly, the Democrat leadership in Congress and the House Committee on Energy and Commerce are not keen on Blackburn’s bill, and the committee’s leaders have declined to bring the bill forward for consideration.

In response, Blackburn has filed a discharge petition, a tactic to leapfrog over the committee straight to the House floor for an up-or-down vote on her bill.

A petition for discharge is a legislative procedure that allows a bill sponsor to force a reluctant committee to let the measure go forward, to discharge it to the full House without committee action. To succeed, however, such a motion requires a simple majority of House members - 218 to be exact - to support it.

Blackburn now has 97 co-signers on her motion to move HR-391 to the House floor, which is 121 votes shy of the 218 needed.

But Claude Chafin, Blackburn’s spokesman, said that since the EPA formally announced its CO2 endangerment finding on Monday, “more and more of her colleagues have expressed interest, and she is optimistic that it will pick up momentum”.

Blackburn believes, Chafin said, that her bill will pick up increasing support in part because most in Congress want to avoid the regulatory and economic train wreck that likely will flow from the endangerment finding, but also because the EPA action is seen as a separation of powers issue.

“She has said that something like this that will have such a dramatic and negative impact on the nation’s economy should not be unilaterally imposed by the executive,” Chafin said.

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By: Joe Kamalick
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