Around 75 lawsuits challenge US EPA greenhouse rules - attorney

14 March 2011 18:58  [Source: ICIS news]

WASHINGTON (ICIS)--Around 75 lawsuits have been filed thus far in the growing effort to block US federal regulation of greenhouse gases, but congressional efforts to revoke those rules have little chance of success, an environmental attorney said on Monday.

Lawrence Demase, an environmental law attorney with the Pittsburgh, Pennsylvania-based firm of Reed Smith, told a seminar that the number of legal challenges to the Environmental Protection Agency’s (EPA) greenhouse gases (GHG) regulations may have jumped to 80 cases recently.

The lawsuits have been filed by industry groups, including petrochemical and refining trade associations, along with multiple state government challenges and a variety of suits by nongovernmental organisations (NGOs).

While the legal challenges take several different approaches, all seek to halt the EPA’s rollout of its rules to limit emissions of GHG by US electric utilities, refineries, petrochemical plants and other major industrial facilities.

Those regulations took effect on 3 January this year.

Some of the suits challenge the agency’s controversial December 2009 “endangerment finding” in which EPA declared that greenhouse gases cause global warming that in turn poses a threat to the health of Americans and the nation’s environment.

On that basis of that finding, EPA said it had authority to regulate GHGs under the Clean Air Act (CAA).

Lawsuits challenging the finding contend that EPA lacked sound scientific grounds for the declaration of danger.

Other suits contend that the agency’s subsequent “tailoring rule” of May 2010 was an invalid assumption of congressional authority and was consequently invalid.

In the tailoring rule, EPA recognised that it could not possibly implement regulations covering GHG emissions based on the Clean Air Act’s threshold jurisdictional level of as little as 100 tonnes/year from any stationary source. 

At that threshold level, the EPA would have been obliged to regulate emissions from perhaps 6m US facilities, including restaurants, farms, schools, shopping malls and hospitals.

To avoid the likely chaos that would result, the agency in its tailoring rule limited its GHG restrictions to only those major facilities that emit more than 75,000 tonnes/year of greenhouse gases.

The lawsuits contend, however, that only Congress has authority to alter the threshold criteria of the Clean Air Act.

All of the suits may take years to reach resolution, probably in the US Supreme Court and perhaps no earlier than 2013 or 2014, according to some estimates.

In the meantime, Demase noted, there are several bills pending in Congress that would revoke or deny EPA’s authority to regulate GHG under the Clean Air Act or any other federal statute.

But Demase said that while there has been some bipartisan support in Congress for those EPA-blocking bills, “it is questionable whether there is enough bipartisan support to override a veto”.

President Barack Obama has previously indicated that he would veto a bill seeking to reverse EPA’s climate-related regulations.

While Congress can approve legislation with a simple majority vote, it requires a two-thirds majority of both the Senate and House to overturn a presidential veto.

As a consequence, the federal courts, and ultimately the Supreme Court, likely would determine the validity of EPA’s greenhouse gases regulations.

Paul Hodges studies key influencers shaping the chemical industry in Chemicals and the Economy

By: Joe Kamalick
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