Are Federal Courts Finally Through Debating EPA’s Regulatory Authority Over Greenhouse Gases?

With much of the country’s attention focused on the Supreme Court, awaiting a ruling on the Affordable Care Act, the United States Court of Appeals for the District of Columbia handed down a decision on Tuesday upholding the Environmental Protection Agency (EPA)’s greenhouse gas regulations in full. Coalition for Responsible Regulation v. Environmental Protection Agency, No. 09-1322 (D.C. Cir. Jun. 26, 2012) (per curiam). The three-judge panel, in an 82-page opinion, unanimously declared the agency’s suite of regulations to be “unambiguously correct.” Id.

Federal regulation of emissions that cause climate change is a relatively recent development. The EPA had declined to exert its Clean Air Act authority over greenhouse gases until the Agency’s decision against regulation was challenged all the way to the Supreme Court in 2007. Massachusetts v. EPA, 549 U.S. 497 (2007). The Supreme Court ruled that the EPA did have the authority to regulate greenhouse gases under the Clean Air Act if it found greenhouse gases to “endanger…public health or welfare” under section 202(a) of the Act. In 2009, the Obama EPA made an Endangerment Finding for greenhouse gases, and the agency has since issued greenhouse gas regulations for motor vehicles (through the Tailpipe Rule) and the largest stationary sources (through the Tailoring Rule). Additionally, the EPA has proposed regulations for greenhouse gas emissions from power plants.

All of these regulations were challenged by various industry and state petitioners, and consolidated into the cases decided on Tuesday. Dozens of parties submitted hundreds of pages of briefs to the D.C. Circuit, and oral arguments were heard over two days in February of this year. In the end, every claim brought against EPA was either dismissed or denied.

Like any other upheld regulation, this decision’s practical significance stems largely from the fact that it keeps everything the same—the EPA will continue to regulate greenhouse gases from motor vehicles and stationary sources, and will continue to promulgate regulations for CO2-emitting power plants. The United States will continue to limit our contribution of climate change-inducing gases to the atmosphere. The regulatory state is in exactly the same place it would have been had the regulations never been challenged in the first place.

The legal significance of the decision, on the other hand, is enormous. A per curiam decision by a three-judge panel in a Court of Appeals sends a strong message in any case. But this particular panel happened to include two of the judges who presided over the Court of Appeals’ decision in Massachusetts v. EPA, 415 F.3d. 50 (D.C. Cir. 2005) seven years ago, when the D.C. Circuit upheld the EPA’s decision not to regulate greenhouse gases under the Clean Air Act. Id. at 58. Chief Judge Sentelle, then Judge Sentelle, concurred in this judgment, while Judge Tatel wrote a passionate dissent that was a precursor to the Supreme Court’s majority opinion in Massachusetts v. EPA, 549 U.S. 497 (2007). In Tuesday’s opinion, both Judge Tatel and Chief Judge Sentelle reaffirmed the Supreme Court’s decision in Massachusetts, joined by Judge Rogers.

What happens next? The options of the failed petitioners are limited. They could seek an en banc review from the D.C. Circuit, but those are rarely granted in decisions without a dissenter. The petitioners could appeal the case to the Supreme Court, but the Supreme Court may not want to hear the case either. After all, the Court’s decision in Massachusetts was the basis for the EPA’s regulations, and the D.C. Circuit panel drew largely on the Court’s decision in that case, citing to Massachusetts within the first sentence of its opinion. Coalition for Responsible Regulation v. EPA, No. 09-1322 (D.C. Cir. Jun. 26, 2012). It seems unlikely that the Supreme Court would want to revisit such a recent decision, even though the author of that decision, Justice Stevens, has since retired from the bench.

Additionally, the Supreme Court’s recent decision in American Electric Power, Inc. v. Connecticut, 131 S.Ct. 2527 (2011) suggests that the Court, even without Stevens, has no interest in overturning Massachusetts. In this decision, the Court denied that large emitters of carbon dioxide could be sued for their contribution to global warming under the common law of nuisance. and in the process, affirmed the EPA’s authority to regulate greenhouse gases under the Clean Air Act. “We hold that the Clean Air Act and the EPA actions it authorizes displaces any federal common law right to seek abatement of carbon dioxide emissions from fossil fuel fired power plants.” Id. at 2539.

However, should the Supreme Court wish to weigh in on the EPA’s regulations, the D.C. Circuit did leave an opportunity to do so. The Court of Appeals never reached the merits discussion of the Tailoring Rule, dismissing those claims on standing grounds (and citing to Schoolhouse Rock in the process). Because the petitioners were large emitters facing regulation with or without the Tailoring Rule in place, the court deemed that removing the Tailoring Rule would provide no relief to the petitioners, and that they therefore lack standing to bring that claim.

The Tailoring Rule was widely considered to be the most vulnerable of the challenged regulations, since it effectively replaced the statutory thresholds that Congress had included in the Clean Air Act with higher thresholds for greenhouse gases. Despite reaffirming Massachusetts, the Supreme Court in American Electric Power was quick to point out that EPA’s judgment in enforcing the Clean Air Act “would not escape judicial review,” stressing that the use of the word judgment “is not a roving license to ignore the statutory text.” American Electric Power, Inc. v. Connecticut, 131 S.Ct. 2527 at 2539 (2011), quoting Massachusetts v. EPA, 549 U.S. at 533 (2007).

Was Tuesday the last word on Coalition for Responsible Regulation v. EPA? Only time (and possibly a petition for certiorari) will tell. But the D.C. Circuit’s decision makes clear that further challenges to these particular EPA rules will be, at best, a long shot.

Liz Och is the Managing Editor for MJEAL. She can be reached at och@umich.edu.


The views and opinions expressed in this blog are those of the authors only and do not reflect the official policy or position of the Michigan Journal of Environmental and Administrative Law or the University of Michigan.

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