INSIGHT: Suits ask US high court to reverse EPA greenhouse rules

25 April 2013 16:00  [Source: ICIS news]

By Joe Kamalick

US high court asked to intervene in EPA GHG regulationsWASHINGTON (ICIS)--Nearly 100 plaintiffs representing many hundreds more US companies this week filed eight petitions asking the US Supreme Court to rein-in the EPA and “the most burdensome, costly, far-reaching program ever adopted by a US regulatory agency”.

In multiple filings to the high court, a broad range of trade groups representing scores of industries, members of Congress and law foundations have asked the nine justices to overturn the June 2012 ruling by the US Court of Appeals for the DC Circuit that upheld key actions by the Environmental Protection Agency (EPA) to regulate, limit and reduce US emissions of carbon dioxide (CO2) and other greenhouse gases (GHGs).

In what many might consider a legal longshot, the plaintiffs in this high court appeal essentially want the Supreme Court to invalidate EPA’s landmark “endangerment finding” of December 2009 that triggered a broad and ongoing regulatory campaign by the agency to reduce US CO2 emissions.

EPA’s endangerment finding and its subsequent broad swipe against GHG emissions are based on the 2007 Supreme Court ruling in Massachusetts v EPA, in which the high court held that carbon dioxide, other greenhouse gases, and anything else in the atmosphere, all come within the purview of the 1970 Clean Air Act (CAA) and the regulatory jurisdiction of EPA.

The high court said that if EPA determined that carbon dioxide and other GHGs pose a danger to human health or the environment, the agency could and should regulate those substances. 

(It is often reported that in its Massachusetts ruling, the high court ordered EPA to regulate greenhouse gases, but that was not the case.  The Supreme Court ruled that EPA certainly has authority under the Clean Air Act over anything in the atmosphere and that consequently it could regulate carbon dioxide – if EPA found that CO2 posed a threat to health.)

In its endangerment finding of 2009, EPA did just that, citing UN-sourced global warming research – widely criticised – as its scientific basis.

A variety of plaintiffs, including chemicals, energy and manufacturing trade groups along with state governments, challenged that EPA finding in lawsuits filed about two years ago with the DC Circuit appeals court.  It was those suits that the appellate court rejected in June last year.

Now many of those same plaintiffs are taking their cause to the Supreme Court, arguing that the appellate court erred and that EPA’s endangerment finding and all regulations flowing from it are invalid.

In the petition, plaintiffs contend that the flood of EPA emissions rules based on its endangerment finding “together create a comprehensive, integrated program that gives EPA regulatory jurisdiction over a breadth of human activity unparalleled in the history of American governance”.

“Through the Endangerment Finding … EPA enacted a regulatory program that covers essentially every human activity that uses any appreciable amount of energy derived from fossil fuels,” the appeal says.

According to EPA, the appeal says, the GHG rules “triggered a scope of stationary source regulation that, by EPA’s own acknowledgement, would make up to six million new stationary ‘sources’ subject to EPA regulation, compared to 14,000 under the pre-GHG rules”.

“The scope of ‘source’ facilities ensnared by this new EPA oversight would be staggering: offices, apartment buildings, retail establishments, government buildings (presumably even courthouses), small farms and restaurants,” the appeal contends.

In fact, EPA recognised that the broad result of its endangerment finding would indeed impact millions of facilities, mostly small, and consequently issued its “tailoring rule”, which adjusted Clean Air Act reporting thresholds to limit the reach of its GHG rules to only major industrial facilities, electric utilities and the like.

In seeking intervention by the Supreme Court, the petitioners argue that “the conclusions of the EPA’s Endangerment Finding are irrational and cannot support such a dramatic expansion of regulatory authority”.

Sam Kazman, general counsel for the Competitive Enterprise Institute (CEI) and one of the plaintiff attorneys in the case, contends that in its endangerment finding EPA relied on UN-sourced research rather than its own investigation and arbitrarily dismissed “huge evidence” that contradicted those UN studies and showed that climate models underlying the UN findings were not functioning.

“On that basis, the EPA endangerment finding was equally vulnerable,” Kazman said.

In addition to attacking the scientific basis for the endangerment finding, Kazman and other plaintiff counsel argue that EPA’s “tailoring rule” also should be overturned by the Supreme Court.

The tailoring rule, the appeal argues, is “fundamentally contrary to the express terms of the Clean Air Act and the acknowledged intent of Congress”.  The point here is that Congress writes the nation’s laws, and while regulatory agencies have considerable leeway in interpreting those authorising statutes, they cannot re-write the laws.

In the tailoring rule, the appeal points out, EPA “changed the express numerical thresholds set forth in the Clean Air Act that define ‘major sources’ subject to regulation”.

“EPA replaced the Act’s specific numeric standards (100 or 250 tons per year, depending on source) with alternative values that EPA deemed more suitable (75,000 or 100,000 tons per year)”, the appeal notes, arguing that in so doing EPA took it upon itself to revise an act of Congress.

That, says the brief, “portends an unconstitutional and dangerous shift in the balance of power from the legislative branch to the executive branch” in violation of the Constitution’s fundamental separation of powers.

Kazman said that prospects for a Supreme Court hearing on the new appeal are improved because two of the lower DC Circuit appellate court judges dissented from the majority ruling in June last year.

DC Circuit appellate court Judge Brett Kavanaugh described EPA’s GHG findings and subsequent regulations as “the most burdensome, costly, far-reaching program ever adopted by a United States regulatory agency”.

In addition, said Kavanaugh, “EPA’s interpretation will impose enormous costs on tens of thousands of American businesses, with corresponding effects on American jobs and workers … and on the US economy more generally”.

Indeed, DC Circuit appellate court Judge Janice Brown, the other dissenting justice, declared that “The real absurdity is that this unprecedented expansion of regulatory control, this epic overreach, may very well do more damage to the wellbeing of Americans than GHGs could ever do”.

Kazman said that the high court could decide as early as late June or early July – before the court’s summer recess – on whether to hear the appeal, although that decision might be delayed until the court resumes in early October.

($1 = €0.77)

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

By: Joe Kamalick
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