On Friday, December 10, the DC District Court of Appeals rejected a bid by business groups, right-wing legal organizations, and the state of Texas to delay EPA greenhouse gas rules until legal challenges against the regulation are resolved. EPA regulation will now be allowed to take effect on January 2, 2011. However, these lawsuits have always been a sideshow to corporate lobbying efforts to hamstring EPA, with the real threat now taking shape in the possibility of Congressional action to block or de-fund EPA’s regulation.
Washington Post, December 24: EPA vows to enforce curbs on emissions
New York Times, December 23: E.P.A. Says It Will Press on With Greenhouse Gas Regulation
David Doniger, Natural Resources Defense Council, December 23: Clean air standards coming for americas biggest carbon polluters]
Petitioners cited irreparable harm from economic damages in their motion to stay, but even if economic loss can be proven, it cannot on its own be considered irreparable harm. The court ruled that “petitioners have not shown that the harms they allege are ‘certain,’ rather than speculative, or that the ‘alleged harm[s] will directly result from the action[s] which the movant[s] seeks to enjoin.”
In June, Lisa Murkowski’s (R-Alaska) resolution to block EPA regulation of greenhouse gases went down in the Senate, 47 to 53, with six Democrats voting for it. Politico reported that in the upcoming 112th Congress, at least 56 Senators are likely to support a similar measure. Swing-state Democrats up for reelection in 2012 could make the difference, and may be especially susceptible to arguments that regulation would increase economic pain. The Obama administration would very likely veto such a stand-alone resolution, but the situation may be more complicated if it is included in a larger bill. Politico quotes an unidentified environmental advocate: “if it’s part of a bigger piece of legislation where the president doesn’t have to wuss out in such grand explicitness, I think they’d let it go.” EPA preemption was previously used as a bargaining chip in the Kerry-Lieberman American Power Act in an effort to bring bipartisan support on board.
Congress could also use the appropriations process to block funding for implementation of EPA rulemaking. Rep. Hal Rogers (R-Kentucky), the incoming chair of the House Appropriations committee, said he “would be open to use riders on appropriations bills to block EPA’s climate change regulations next year,” according to ClimateWire (by subscription).
Although the ruling is excellent news in that it allows EPA to move forward with regulation as planned, this is only the opening round in a protracted battle that will ultimately play out in Congress.