"EPA Likely to Lose Suit"

Warming Law — Thu, 20 Dec 2007 16:53:00 -0600

(Cross-posted from Warming Law, which focuses on covering and analyzing the fight against global warming from a legal perspective.)

by Tim Dowling

“EPA Likely To Lose Suit.”

So said EPA, or at least EPA’s legal staff, when it briefed Administrator Johnson on the legal ramifications of a waiver denial. The quoted language comes from a powerpoint slide used during that briefing. As the Washington Post reports, Johnson’s waiver denial flew in the face of “the unanimous recommendation of the agency’s legal and technical staff.”

California’s legal challenge to the waiver denial will be filed in the U.S. Court of Appeals for the D.C. Circuit, and one large reason for believing EPA will lose can be found in the D.C. Circuit’s opinions in previous waiver cases. Unlike Administrator Johnson, the D.C. Circuit clearly recognizes the special, leading role California plays under the Clean Air Act with respect to controls on tailpipe emissions.

For example, in Motor & Equipment Mfrs. Ass’n v. Nichols, 142 F.3d 449, 543 (D.C. Cir. 1998), the D.C. Circuit ruled that waiver process is designed “to afford California the broadest possible discretion in selecting the best means to protect the health of its citizens and the public welfare.” (quoting the House Report).

In a more comprehensive discussion in Engine Mfrs. Ass’n v. U.S. EPA, 88 F.3d 1075 (D.C. Cir. 1996), the court explained:

Congress recognized that California was already the “lead[er] in the establishment of standards for regulation of automotive pollutant emissions” at a time when the federal government had yet to promulgate any regulations of its own. California’s Senator Murphy convinced his colleagues that the entire country would benefit from his state’s continuing its pioneering efforts, California serving as “a kind of laboratory for innovation.” This function was enhanced by the 1977 amendments, which permitted other states to “opt in” to the California standards by adopting identical standards as their own. Thus, motor vehicles must be either “federal cars” designed to meet the EPA’s standards or “California cars” designed to meet California’s standards. Rather than being faced with 51 different standards, as they had feared, or with only one, as they had sought, manufacturers must cope with two regulatory standards under the legislative compromise embodied in § 209(a). Id. at 1079-80 (citations and footnotes omitted).

The D.C. Circuit also examined the waiver process in Motor & Equipment Mfrs. Ass’n v. EPA, 627 F.2d 1095 (D.C. Cir. 1979), an unsuccessful industry challenge to EPA’s waiver grant for California rules concerning in-use maintenance of motor vehicles. Tracking the language of the statute, the court observed that EPA must grant a waiver request unless it makes one of the three findings set forth in Section 209(b)(1)(A)-(C). Id. at 1106. The issue is emphatically NOT whether the California rules are a good idea as a matter of policy, but whether EPA discharged its duties under the CAA. Id. at 1105.

Johnson’s bogus concern that a waiver grant here would create a “confusing patchwork” simply cannot be reconciled with the Clean Air Act and the applicable precedents that construe the waiver provisions in Section 209. Expect the D.C. Circuit to make short work of it.

Mass. v. EPA and Coal: Johnson Gets Grilled

Warming Law — Mon, 12 Nov 2007 16:32:00 -0600

(Cross-posted from Warming Law, which focuses on covering and analyzing the fight against global warming from a legal perspective. My name is Sean Siperstein, and I run Warming Law as part of my work for Community Rights Counsel, a non-profit, public interest law firm that assists communities in protecting their health and welfare. Follow the links for more info. about Warming Law; about CRC’s work and history; and for those truly curious, about me. Thanks for the opportunity to join the discussion; I really look forward to it!)

On Thursday, Rep. Henry Waxman (D-CA) convened the House Oversight and Government Reform Committee to delve into whether the EPA acted properly in approving a permit for a coal-fired power on tribal land in Utah—its first such decision since the Supreme Court’s determination that CO2 is an air pollutant—despite the continued opposition of several environmental groups. Readers can check out the committee’s website for complete video of the fireworks-filled hearing and all testimony.

The hearing’s central witness was EPA Administrator Stephen Johnson, who testified that because EPA is still in the process of formulating regulations in response to Mass. v. EPA, CO2 is, for the time being, still not a "regulated pollutant" under the Clean Air Act—and thus, EPA "simply lacks the legal authority…to impose emissions limitations for greenhouse gas emissions on power plants."

Under intense questioning, Johnson continued to stand by his basic talking points, arguing again that EPA’s failure to regulate CO2 keeps it from even beginning to consider it in assessing proposed power plants. Reporting on the hearing, Ryan Grim of the Politico parses Johnson’s testimony and sees something beyond legal reasoning possibly at play here:

Johnson has a tight line to walk: He has to show that he’s in compliance with the Supreme Court ruling while not committing to doing too much. “I have to abide by the law as it’s written today,” Johnson says.

He also thinks that “we must continue to improve our knowledge of the science,” but promises that the EPA is “developing regulations to pursue it from a regulatory standpoint” using a “deliberative and thoughtful process.”

Democrats aren’t buying. “No, you’re not,” Rep. John Tierney (D-Mass.) tells him flatly. “You’re looking for any avenue you can to avoid doing it.” Several Democrats bring up the EPA’s long-running refusal to approve a waiver for California to enact its own carbon regulation scheme.

The primary argument against Johnson’s take was provided by David Doniger of the National Resources Defense Council (NRDC), who asserted that EPA does have a mandate to move forward, and in doing so should have quickly concluded that new coal-fired plants ought not be approved without significant mitigation strategies. In doing so, Doniger cites several decisions by businesses and state regulators indicating that concrete action is possible, and summarizes the four main arguments of environmental organizations’ latest formal comments objecting to EPA’s decision:

As a result of the Supreme Court’s determination, in Massacuhsetts v. EPA, that the Clean Air Act is "unambiguous" on CO2’s status as a pollutant, CO2 is "plainly a ‘pollutant subject to regulation’ under the Act. This should trigger Section 165(a)(4) of the Act, which requires that the permit "include an emission limit reflecting the Best Available Control Technology (BACT) ‘for each pollutant subject to regulation.’"
Even putting aside the Court’s ruling, CO2 is already a "regulated" pollutant for this purpose under the Clean Air Act Amendments of 1990, which require utilities to monitor, record and report CO2 emissions.
Even in the absence of a BACT limitation for CO2, Sections 165(a)(4) and 169(3) of the Clean Air Act require that EPA consider other environmental impacts during its BACT analysis for "conventional pollutants (such as sulfur oxides and nitrogen oxides)"; this requirement should force consideration of global warming, which would certainly qualify as an important environmental consideration, yet EPA has "refused to undertake even this critical analysis in connection with issuing air permits for new coal plants."
Under Clean Air Act 165(a)(2), which deals with public comments, the agency is required to weigh comments on factors including air quality impacts, potential alternatives to the proposed plant, and control technology requirements; it also has the power to consider these factors even if they are not raised in public comments. Properly conducted, such a process would find a wide range of available alternatives to allowing conventional new coal plants, but yet again, EPA has failed to even conduct this analysis.

Rep. Waxman also used the hearing to introduce legislation that would essentially settle the issue, creating a temporary moratorium on the approval of new coal-fired plants until EPA finshes developing its regulations .

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"EPA Likely to Lose Suit"

Mass. v. EPA and Coal: Johnson Gets Grilled