With all hopes for passage of climate and clean energy legislation in the Senate long gone and the deadline for EPA regulation of greenhouse gases fast approaching, the showdown on climate has moved to the courts. A number of legal challenges have put EPA’s ability to regulate at stake, with 20 states now standing with EPA and environmental groups in the battle against industry associations, limited government advocacy groups, and 17 other states. In their attempt to forestall regulation, many petitioners are using the strategy of once again calling into question the scientific assessment that triggered EPA’s statutory obligation to regulate greenhouse gases, but the agency has so far held its ground.
EPA’s Endangerment Finding
EPA determined in December 2009 that climate change caused by GHG emissions endangers human health and welfare, triggering regulation under the Clean Air Act. This finding was based on an agency evaluation of the robust scientific literature demonstrating unequivocal human influence on the climate system. This Technical Support Document drew primarily from assessment reports of the Intergovernmental Panel on Climate Change (IPCC), the U.S. Climate Change Science Program (CCSP), the U.S. Global Change Research Program (USGCRP), and the National Research Council (NRC).
The agency received ten petitions for reconsideration of the finding from fossil fuel interests, the U.S. Chamber of Commerce, anti-regulatory ideologue NGOs, and the state governments of Texas and Virginia. According to the EPA, the petitions generally challenged the scientific basis of the Endangerment Finding by citing materials from the ‘Climategate’ e-mail hack that allegedly undermined the validity of the global temperature record, a “small number of actual or alleged errors” in the IPCC Fourth Assessment Report, and a “limited number of new studies that have been published in the literature.”
In July 2010, EPA rejected all petitions, defending the science supporting the Endangerment Finding as “robust, voluminous, and compelling,” and provided roughly 360 pages of response and technical detail “concerning every significant claim and assertion made by the petitioners.” EPA concluded that “the petitioners’ arguments and evidence are inadequate, generally unscientific, and do not show that the underlying science supporting the Endangerment Finding is flawed, misinterpreted by EPA, or inappropriately applied by EPA.”
Core actions under dispute
As EPA moved towards GHG regulation in the wake of Massachusetts v. EPA, industry and ideologically oriented anti-regulatory forces warned that if EPA went ahead with regulation, they would drown the process in litigation. That scenario is now coming to pass, with more than 80 cases challenging different aspects of EPA’s actions currently moving through the D.C. Circuit Court of Appeals, which has jurisdiction over challenges to the Clean Air Act.
The following actions are being attacked from a number of angles:
(1) Endangerment Finding: EPA’s determined that GHG emissions from moving vehicles are reasonably likely to threaten human health and welfare and thus must be regulated under the Clean Air Act.
(2) Tailpipe Rule: Based on the Endangerment Finding, EPA and the National Highway Traffic Safety Administration (NHTSA) took coordinated steps to set GHG emissions standards for light duty vehicles for model years 2012-2016. These standards were finalized on April 1, 2010 and will go into effect on January 2, 2011. EPA and NHTSA have also announced their intention to begin developing further standards for GHGs and fuel economy for light duty vehicles and new standards for medium- and heavy-duty vehicles.
(3) Timing or Triggering Rule: EPA interpreted the Clean Air Act to determine that the promulgation of a rule for mobile sources triggers a statutory obligation to regulate stationary sources within the same time frame. The current standard for regulation of air pollutants is 100 tons for some facilities and 250 tons for others. Because these thresholds were not designed with GHG regulation in mind, they were adjusted through the Tailoring Rule, and will take effect on January 2, 2011.
(4) Tailoring Rule: On May 13, 2010 EPA issued final rulemaking on thresholds for GHG emissions from stationary sources, which will take effect for the nation’s largest emitters (power plants, refineries, cement production facilities, etc.) on January 2, 2011. EPA raised the threshold for emissions to exempt small emitters from regulation and avoid excessive regulatory burden. Without the tailoring rule, about 6 million facilities would be subject to regulation.
Motions to stay
Because these cases will not reach resolution before regulation takes effect on January 2, 2011, petitioners from some of the cases have filed motions to stay all or part of EPA’s regulations while the litigation proceeds, arguing that that rulemaking is already causing “ongoing and imminent irreparable harm” to their economic interests before the regulatory regime has had a chance to be overturned in court. Three different groups of petitioners filed motions:
1.) A coalition of large business groups led by the National Association of Manufacturers petitioned for a partial stay on EPA’s ability to regulate stationary sources, but let stand EPA regulation of emissions from cars and light duty trucks.
2.) A group of limited government advocacy organizations and legal foundations expressed its uniform opposition to “EPA’s arbitrary application of the Clean Air Act to a trace constituent of clean air,” challenging all four components of EPA regulation.
3.) The state of Texas also challenged all components of EPA regulation.
In their motion for stay, the second group of petitioners challenged EPA’s assessment of the science underlying the Endangerment Finding, contending that “EPA did not exercise its own judgment, and did not fulfill its statutory obligation.”
They fault EPA for relying on the major assessments of USGCRP, IPCC and NRC as the primary scientific and technical basis for the endangerment decision, and argue that because the Administrator did not perform her own assessment of the underlying scientific material, she cannot confirm its accuracy, completeness, or objectivity, and neither can the Court, because the IPCC assessments are not in the administrative record.
The petitioners also cite minor errors in the IPCC AR4, including the incorrect statement about Himalayan glacier melt, and cite the ‘Climategate’ e-mails as proof that “IPCC’s assessment of climate science was neither transparent nor objective.”
The state of Texas also argued that EPA’s Endangerment Finding is legally flawed because “EPA did not exercise its own judgment regarding the danger of GHGs and climate change, but rather relied on the judgment and conclusions of outside, unaccountable groups.”
Texas’ brief also cites the InterAcademy Council’s (IAC) review of the IPCC assessment process that called for “fundamental change” in the IPCC’s processes and management structure, but fails to note that the IAC didn’t criticize the IPCC’s scientific findings.
According to the Columbia Climate Law Center, the challenge that EPA improperly relied on outside groups for its scientific assessment “faces an uphill climb; EPA has a long history of relying on outside peer-reviewed scientific reports, and in any case courts generally defer to federal agencies on scientific and technical matters.”
EPA and the Department of Justice responded to the motions to stay on October 28, arguing that the opponents’ objections are fundamentally not to EPA’s actions but rather, “to the decisions Congress made and to the strict requirements Congress itself imposed on sources of air pollution,” and that the Court cannot stay the Clean Air Act.
The brief states: “They attempt as well to relitigate the fundamental issue that the Supreme Court resolved in Massachusetts: whether greenhouse gases can be regulated at all under the Clean Air Act.”
EPA directly addresses the contention that the agency improperly relied on outside sources in determining its Endangerment Finding:
“EPA did not simply rubber-stamp these assessments. In fact, EPA evaluated the assessments and their conclusions in several ways: by reviewing the process employed to develop them, by reviewing their substantive content in light of in-house expertise, by taking into consideration the depth of scientific consensus the assessments represented, and by considering trends in the science” (p. 49 of brief).
“As this Court has stated frequently, an agency does not improperly delegate its authority or judgment merely by using work performed by outside parties as the factual business for its decision making…Consistent with these authorities, although the IPCC assessment and other scientific assessments compiled and reviewed by EPA provided the principal source materials for EPA’s action, EPA exercised its own judgment both regarding the state of the science and in finding endangerment based on this science” (p. 50).
“Neither do Movants cite any legal authorities to support their argument that an independent exercise of judgment required EPA to re-examine the thousands of studies reviewed, analyzed and synthesized by the IPCC, the USGCRP, and others…in other words, to expend vast resources re-doing work already done by highly-qualified bodies, carefully reviewed by EPA, and subjected to public comment” (p. 51).
On November 1, a coalition of 20 states and 13 environmental groups filed a brief in support of the agency requesting that the motions to stay be denied, including many of the parties that originally petitioned EPA to begin regulating greenhouse gases in the cases that led to the Massachusetts v. EPA Supreme Court decision.
The coalition also defends EPA’s scientific determinations, noting that “Movants do not challenge the credibility of the U.S. Global Change Research Program (USGCRP) and National Research Council (NRC), on which EPA also relies…The conclusions of either of these unchallenged, independent bodies would suffice to support EPA” (18), and that the IPCC’s international preeminence is widely accepted, including by the U.S. Senate.
The brief argues: “Even a one-year stay would result in the release of many millions of tons of greenhouse gas emissions that would otherwise have been avoided under the rules. Furthermore, the damage from these emissions would persist for well over a century, given the long atmospheric lifetime of greenhouse gas pollutants, contributing to climate change for many years.”
The Court’s decision on the motions to stay is expected imminently, while the timeline for the rest of the cases is unclear.
The U.S. government has put out excellent work supporting its science-based policy decisions in the Endangerment Finding and the Denial of Petitions to Reconsider. Given the importance of EPA regulations as the current best chance for GHG regulation in the near future and the likelihood that there will be a debate in Congress about this EPA rulemaking, Americans should be able to expect that their representatives in Congress will read and be familiar with this solid scientific work before decisions are made.