Ruling may show future of greenhouse gas regulation

Marty Dolan, principal at Dolan Law, and his associate Karen Munoz represent victims of wrongful death and personal-injury. His column “Law and Wellness” appears in the Chicago Lawyer and her column appears regularly in the Law Bulletin. This week’s blog is written by Karen Munoz.

The Court of Appeals for the D.C. Circuit, in the case of Coalition for Responsible Regulation Inc. v. Environmental Protection Agency, recently made a key finding in a case concerning a challenge to certain EPA rules and regulations regarding industry greenhouse gas emissions under the Clean Air Act (CAA). Fourteen states (spearheaded by Texas and Virginia) and various industry groups petitioned the court to review the EPA’s decisions. The EPA was supported by 15 other states including California and Massachusetts.

Among the central findings of the court was the decision to uphold the EPA’s “endangerment finding,” namely that greenhouse gases are air pollutants which “may reasonably be anticipated both to endanger public health and to endanger public welfare.” Such a finding is required to bring greenhouse gases within the purview of the CAA.

The petitioning states and industry groups challenged the scientific basis of the ‘endangerment finding,’ arguing first, that the EPA had improperly delegated its decision-making function by relying on the conclusions of various research groups in relation to global warming. The court resoundingly rejected this argument noting that the EPA had simply reviewed the existing scientific evidence in reaching this conclusion, and stating that “[t]his is how science works. The EPA is not required to re-prove the existence of the atom every time it approaches a scientific question.” The court also noted that, on scientific questions within the technical expertise of the agency, the court will presume the validity of its decisions as long as there is a rational basis for it, and the court, based on the scientific evidence considered by the EPA, concluded there was.

The petitioners also argued that, in interpreting the CAA as automatically triggering regulation of greenhouse gases, the EPA relied on an improper interpretation of the CAA, and was arbitrary and capricious in failing to justify and consider the cost impacts of its decision, with regard to the so-called Tailpipe Rule regulating emissions by automobiles. However, the court, again, decisively rejected this argument noting that the language of the CAA compels the CAA to promulgate regulations once it determines something to be an air pollutant.

There were various other reasons for challenging the EPA’s rules, all of which were ultimately rejected. I see this decision as a very positive step. Ever since the 2007 Supreme Court decision in Massachusetts v. EPA, in which it was held that greenhouse gases could be regulated under the CAA if the gases were found to endanger public health and welfare, there has been protracted legal wrangling over the EPA’s efforts to regulate and limit greenhouse gases. Opposition to regulation has, unsurprisingly, been led by big industry.

Global warming, and its acceleration due to our greenhouse gas emissions, is a major problem that could cause serious and irreparable damage to the planet in the not-too-distant future. Hopefully this ruling, in conjunction with Massachusetts v. EPA, has put an end to the legal bickering and will pave the way for meaningful progress on regulation of greenhouse gas emissions in the U.S.

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