DC Circuit’s Unanimous Decision to Uphold Greenhouse Gas Rules Across the Board Major Victory for EPA
As Dan just noted, the U.S. Court of Appeals for the D.C. Circuit — in a unanimous decision — handed the U.S. EPA a sweeping victory in upholding across the board four separate components of the agency’s rules to regulate greenhouse gas emissions. The opinion can be found here.
A little background is in order here. The U.S. Supreme Court’s decision in Massachusetts v. EPA directed the Environmental Protection Agency to decide whether greenhouse gases are pollutants that must be regulated under the federal Clean Air Act. The Bush Administration had refused to make such a finding despite petitions from states and environmental groups asking that emissions be regulated. The rules that are subject to today’s ruling — the case is called Coalition for Responsible Regulation v. EPA — are the direct result of the Supreme Court’s Mass v. EPA decision.
EPA’s first decision was to find — as required under the Clean Air Act as interpreted in Mass v EPA — that greenhouse gases endanger public health and welfare. The D.C. Circuit found that the EPA did not act arbitrarily and capriciously when it made its endangerment finding.
EPA’s next decision was to issue what is known as the “tailpipe rule.” The tailpipe rule establishes greenhouse gas emissions standards for automobiles under Section 202 of the Clean Air Act. What is somewhat odd about the challenge to the tailpipe rule in the new Coalition for Responsible Regulation case is that the challengers to the rule are not auto companies but are instead largely made up of businesses that operate what are known as “stationary sources,” — factories that emit pollutants. They argued that the EPA should not have issued the tailpipe rule regulating greenhouse gases from cars because if the agency did so, the next obvious step under separate provisions of the Clean Air Act would be that the agency would have to regulate greenhouse gas emissions from stationary sources. That’s because once pollutants are regulated under one provision of the act the new regulation triggers other provisions of the act. Industry argued that the cost implications of regulating greenhouse gas emissions from stationary sources were so large that the EPA should not have regulated tailpipe emissions. The court rejected this argument, holding instead that the EPA lacked any discretion at all in setting tailpipe emissions once it found that that greenhouse gases endanger public health and welfare. In other words, the Clean Air Act required the EPA to regulate greenhouse gas tailpipe emissions – the agency had no choice.
The third and fourth rules that are at issue in today’s case are called the “timing” and “tailoring” rules. These rules together work roughly as follows: regulation of greenhouse gases for automobiles automatically triggers a different section of the Clean Air Act, what is known as the prevention of significant deterioration section (PSD). That section basically requires the EPA to regulate the emissions of any “major” source of a “regulated” pollutant. “Major” is defined in the Clean Air Act to regulate any source that emits 100 tons per year of a regulated pollutant. The problem for the EPA is that the 100 tons per year amount would subject very, very small sources (a single home, perhaps, certainly apartment buildings and small businesses) to the permitting provisions of the Clean Air Act, something that those small sources have never had to comply with and that would be extremely expensive and administratively burdensome. So in the “tailoring” rule, the EPA only subjected large sources — new sources emitting 100,000 tons per year or more and existing sources making modifications that would increase emissions by 75,000 tons per year or more — to its greenhouse gas rules. Industry challenged both the application of the Clean Air Act to stationary sources and the tailoring rule as an impermissive interpretation of the Clean Air Act. In today’s ruling, the court found that the EPA is legally justified — indeed required — to regulate greenhouse gas emissions from stationary sources under the PSD provisions of the act. But it also found that none of the plaintiffs in the case — which included industry groups and states like Texas that oppose the regulations — have standing to challenge the rules. That means that the plaintiffs do not meet constitutional requirements to bring a case in court. More specifically, the court found, the plaintiffs have not been injured by a rule that exempts small sources from regulation even if the larger businesses themselves will be subject to regulation. This finding is somewhat ironic because industry for years has challenged the standing of environmental plaintiffs to challenge various government rules and the Supreme Court has tightened standing rules over the years. Those tighter rules were used today to limit industry’s ability to challenge rules that don’t directly apply to them.
It seems safe to predict that the legal battles over the greenhouse gas rules are far from over. Expect plaintiffs to petition the U.S. Supreme Court for review. If the high court agrees to take the case, my bet is that the standing portion of the case is the most vulnerable: if the Supreme Court finds that industry and states have standing to sue, then the whole question of the legality of the timing and tailoring rules will be back in front of the D.C Circuit to decide on their merits. But for today, this is a huge victory for the Environmental Protection Agency.
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Ann Carlson is currently on leave from UCLA School of Law. She is the Shirley Shapiro Professor of Environmental Law and was the founding Faculty Director of the Emmett I…
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Hey Ann and Dan, Thanks for the updates. So who would be the ideal industry plaintiff that satisfies the court’s standing decision? It would be difficult for an exempted small business to show harm. Perhaps a larger emitted that is just covered who argues the thresholds of 75,000 and 100,000 are arbitrary and capricious?
-jim s.
Hey Ann and Dan, Thanks for the updates. So who would be the ideal industry plaintiff that satisfies the court’s standing decision? It would be difficult for an exempted small business to show harm. Perhaps a larger emitted that is just covered who argues the thresholds of 75,000 and 100,000 are arbitrary and capricious?
-jim s.
Just curious — How is the 100 tons per year calculated? Even if 100 tons were the limit (without the tailoring rule making this 100,000 tons/yr), that is equivalent to 200,000 pounds of GHG per year. Assuming these emissions only include CO2 from direct combustion, that would be an enormous amount of liquid petroleum or natural gas for a single family residence?
Just curious — How is the 100 tons per year calculated? Even if 100 tons were the limit (without the tailoring rule making this 100,000 tons/yr), that is equivalent to 200,000 pounds of GHG per year. Assuming these emissions only include CO2 from direct combustion, that would be an enormous amount of liquid petroleum or natural gas for a single family residence?
Hi Jim. It seems to me that the easiest standing claim in terms of the tailoring rule would be competitive injury — the plaintiff will be subject to regulation but not smaller competitors, who thereby gain a cost advantage. And, after all, the Chamber of Commerce and others do fundamentally represent big business, not small. But probably the political blow-back from this kind of claim would be too severe.
Hi Jim. It seems to me that the easiest standing claim in terms of the tailoring rule would be competitive injury — the plaintiff will be subject to regulation but not smaller competitors, who thereby gain a cost advantage. And, after all, the Chamber of Commerce and others do fundamentally represent big business, not small. But probably the political blow-back from this kind of claim would be too severe.
It would seem to me that the easiest standing claim would be for the state parties to assert, as Massachusetts did in the Supreme Court case, that they want MORE regulation because they will be adversely affected by climate change. But the politics of THAT would be impossible: the states that are suing because they have Tea Party Attorneys General such as Ken Cuccinelli of Virginia. His political career would be threatened if an opponent could say that he asked for more regulation because of the risks of climate change.
The petitioners made this claim in their reply brief, and the DC Circuit swatted it away, saying 1) you can’t make and entirely new argument in a reply brief; and 2) unlike Massachusetts in the Supreme Court, the states here didn’t bother to include ANY evidence of it. And it certainly serves them right.
It would seem to me that the easiest standing claim would be for the state parties to assert, as Massachusetts did in the Supreme Court case, that they want MORE regulation because they will be adversely affected by climate change. But the politics of THAT would be impossible: the states that are suing because they have Tea Party Attorneys General such as Ken Cuccinelli of Virginia. His political career would be threatened if an opponent could say that he asked for more regulation because of the risks of climate change.
The petitioners made this claim in their reply brief, and the DC Circuit swatted it away, saying 1) you can’t make and entirely new argument in a reply brief; and 2) unlike Massachusetts in the Supreme Court, the states here didn’t bother to include ANY evidence of it. And it certainly serves them right.
The average house emits about 11.5 metric tonnes CO2 per year. Details here
The average house emits about 11.5 metric tonnes CO2 per year. Details here
Ann’s comments here are insightful. I do think (as suggested above by David Quiros) that we should be careful about accepting the idea that application of the PSD program to greenhouse gases would really take in all the sources that some claim it would, such as residences and small businesses.
First, GHG emissions under the Clean Air Act are measured where the fuel is burned. So GHG emissions for electricity aren’t attributable to the end-user, for the purpose of these regulations. (Indeed, the plants where coal and natural gas are burned to create electricity are among the most common regulated parties under the PSD program.) We are talking instead about oil or gas use. Eli Rabett provides an average above for residential home GHG emissions, but that includes electricity use. There certainly may be multi-unit apartment buildings with oil-burning furnaces for heat in parts of the U.S. with cold winters that might have the potential to emit 100 tons per year of GHGs (or 250 tons; see below), but not a huge number. And for a single-family residence to rise above that threshold, it would have to be a most unusual residence indeed! Moreover, most “small businesses” will not have equipment with the potential to emit this quantity of GHGs either. Second, the threshold for most pollutants is 250 tons, not 100 tons, and I believe that this would most likely be the threshold for GHG emissions in most contexts.
But it is true that using the statutory limit for PSD would have significant consequences. The measure used is in the statute is “potential to emit,” not actual emissions, so it’s possible that regulators would have to assume that heating equipment was used far more than it is actually used, which would make substantially more sources fall within the threshold. And currently, the “major sources” covered by PSD are truly heavy industrial plants. Including GHGs at the statutory thresholds would certainly include many light industrial and commercial operations that are not currently considered “major sources,” and some large commercial or multi-unit residential buildings that use fossil fuel for heating. Clearly, the tailoring rule will make the definition of “major source” for GHG regulation under the PSD program more closely match the set (and type) of actual sources that are already regulated under PSD for other pollutants: really large industrial facilities. Regardless, I think some have overstated the potential regulatory burden here.
Ann’s comments here are insightful. I do think (as suggested above by David Quiros) that we should be careful about accepting the idea that application of the PSD program to greenhouse gases would really take in all the sources that some claim it would, such as residences and small businesses.
First, GHG emissions under the Clean Air Act are measured where the fuel is burned. So GHG emissions for electricity aren’t attributable to the end-user, for the purpose of these regulations. (Indeed, the plants where coal and natural gas are burned to create electricity are among the most common regulated parties under the PSD program.) We are talking instead about oil or gas use. Eli Rabett provides an average above for residential home GHG emissions, but that includes electricity use. There certainly may be multi-unit apartment buildings with oil-burning furnaces for heat in parts of the U.S. with cold winters that might have the potential to emit 100 tons per year of GHGs (or 250 tons; see below), but not a huge number. And for a single-family residence to rise above that threshold, it would have to be a most unusual residence indeed! Moreover, most “small businesses” will not have equipment with the potential to emit this quantity of GHGs either. Second, the threshold for most pollutants is 250 tons, not 100 tons, and I believe that this would most likely be the threshold for GHG emissions in most contexts.
But it is true that using the statutory limit for PSD would have significant consequences. The measure used is in the statute is “potential to emit,” not actual emissions, so it’s possible that regulators would have to assume that heating equipment was used far more than it is actually used, which would make substantially more sources fall within the threshold. And currently, the “major sources” covered by PSD are truly heavy industrial plants. Including GHGs at the statutory thresholds would certainly include many light industrial and commercial operations that are not currently considered “major sources,” and some large commercial or multi-unit residential buildings that use fossil fuel for heating. Clearly, the tailoring rule will make the definition of “major source” for GHG regulation under the PSD program more closely match the set (and type) of actual sources that are already regulated under PSD for other pollutants: really large industrial facilities. Regardless, I think some have overstated the potential regulatory burden here.