Tuesday, June 26, 2012

Appeals Court Rules Unanimously In Favor Of EPA GHG Regulations

Jun 26: Coalition for Responsible Regulation v. U.S. EPA; American Chemistry Council v. U.S. EPA; and various intervenors including the State of Michigan, et al. In the U.S. Court of Appeals, D.C. Circuit, Case No. 09-1322, consolidated with a number of cases. On Petitions for Review of Final Actions of the Environmental Protection Agency. And, consolidated with dozens of cases and involving hundreds of attorneys. This is a highly controversial, complicated and critically important decision regarding U.S. EPA's ability to regulate greenhouse gases under the Clean Air Act. A unanimous Appeals Court has provided an complete ruling in support of U.S. EPA and Administration.
    The Appeals Court outlines the history as follows: Following the Supreme Court's decision in Massachusetts v. EPA, 549 U.S. 497 (2007) -- which clarified that greenhouse gases are an "air pollutant" subject to regulation under the Clean Air Act (CAA) -- U.S. EPA promulgated a series of greenhouse gas-related rules. First, EPA issued an Endangerment Finding, in which it
determined that greenhouse gases may "reasonably be anticipated to endanger public health or welfare." See 42 U.S.C. § 7521(a)(1). Next, it issued the Tailpipe Rule, which set emission standards for cars and light trucks. Finally, EPA determined that the CAA requires major stationary sources of greenhouse gases to obtain construction and operating permits. But because immediate regulation of all such sources would result in overwhelming permitting burdens on permitting authorities and sources, EPA issued the Timing and Tailoring Rules, in which it determined that only the largest stationary sources would initially be subject to permitting requirements.
    Petitioners, various states and industry groups, challenge all these rules, arguing that they are based on improper constructions of the CAA and are otherwise arbitrary and capricious. The Appeals Court rules, "But for the reasons set forth below, we conclude: (1) the Endangerment Finding and Tailpipe Rule are neither arbitrary nor capricious; (2) EPA's interpretation of the governing CAA provisions is unambiguously correct; and (3) no petitioner has standing to challenge the Timing and Tailoring Rules. We thus dismiss for lack of jurisdiction all petitions for review of the Timing and Tailoring Rules, and deny the remainder of the petitions."
    The Appeals Court explains the organization of the seven part, 82-page decision saying, "This opinion proceeds in several steps. Part II explains why the Endangerment Finding was neither arbitrary nor capricious, while Part III does the same for the Tailpipe Rule. Turning to stationary source regulation, Part IV examines whether any petitioners may timely challenge EPA's longstanding interpretation of the PSD statute. Because we conclude that they may, Part V addresses the merits of their statutory arguments, and explains why EPA's interpretation of the CAA was compelled by the statute. Next, Part VI explains why petitioners lack standing to challenge the Timing and Tailoring Rules themselves. Finally, Part VII disposes of several arguments that have nothing to do with the rules under review, and thus are not properly before us."
    On the issue of the scientific basis for the endangerment finding, the Appeals Court said in part, "State and Industry Petitioners next challenge the adequacy of the scientific record underlying the Endangerment Finding, objecting to both the type of evidence upon which EPA relied and EPA's decision to make an Endangerment Finding in light of what Industry Petitioners view as significant scientific uncertainty. Neither objection has merit. . . Based on this scientific record, EPA made the linchpin finding: in its judgment, the 'root cause' of the recently observed climate change is 'very likely' the observed increase in anthropogenic greenhouse gas emissions. . . EPA had before it substantial record evidence that anthropogenic emissions of greenhouse gases 'very likely' caused warming of the climate over the last several decades. . ."
    On the subject of the Endangerment Finding being arbitrary and capricious and "just a "subjective conviction" of EPA, the Appeals Court said in part, "EPA relied on a substantial record of empirical data and scientific evidence, making many specific and often quantitative findings regarding the impacts of greenhouse gases on climate change and the effects of climate change on public health and welfare. Its failure to distill this ocean of evidence into a specific number at which greenhouse gases cause "dangerous" climate change is a function of the precautionary thrust of the CAA and the multivariate and sometimes uncertain nature of climate science, not a sign of arbitrary or capricious decision-making."
    On the subject of standing, the Appeals Court summarizes the arguments and its ruling as follows: "Petitioners fall far short of these 'irreducible constitutional . . . elements' of standing, id. at 560. Simply put, Petitioners have failed to establish that the Timing and Tailoring Rules caused them 'injury in fact,' much less injury that could be redressed by the Rules' vacatur. Industry Petitioners contend that they are injured because they are subject to regulation of greenhouse gases, Coalition for Responsible Reg. Timing & Tailoring Br. 14. State Petitioners claim injury because they own some regulated sources and because they now carry a heavier administrative burden. State Pet'rs' Timing & Tailoring Br. 22–23. But as discussed above, see supra Part V, the CAA mandates PSD and Title V coverage for major emitters of greenhouse gases. Thus, Industry Petitioners were regulated and State Petitioners required to issue permits not because of anything EPA did in the Timing and Tailoring Rules, but by
automatic operation of the statute. Given this, neither the Timing nor Tailoring Rules caused the injury Petitioners allege: having to comply with PSD and Title V for greenhouse gases."
    Senator Barbara Boxer (D-CA), Chairman of the Environment and Public Works Committee, issued a brief statement saying, "The Appeals Court's decision to unambiguously affirm EPA's clean air efforts to reduce dangerous carbon pollution is a big victory for the health of the American people."
    Representative Ed Markey (D-MA.), Ranking Member on the House Natural Resources Committee and a senior member of the Energy and Commerce Committee, released a statement saying, "Today's ruling is a grand slam for the EPA and the health of the American people, and another strikeout for the fossil fuel special interests trying to block clean energy progress. The DC Appeals Court now joins the Supreme Court in saying that climate science is sound and the EPA has the authority to regulate dangerous heat-trapping emissions under the Clean Air Act. Three years ago today, the House passed the Waxman-Markey climate and clean energy bill, and the problems addressed by that legislation remain with us today. With the science affirmed and the authority granted, EPA should continue their important work to address the greatest challenge of our generation in dealing with global warming. At the same time, Congressional Republicans should stop denying the science and start working with Democrats to craft more comprehensive and bipartisan responses to the threat posed by global warming."
    Sierra Club issued a release on the decision calling it "a sweeping victory for public health and clean air." Michael Brune, executive director of the Sierra Club said, "Today's decision is a huge victory for American families and everyone concerned about protecting the air we breathe and the health of our children. The role of the Clean Air Act in protecting our families from dangerous carbon pollution and climate disruption should never have been in doubt, and this decision is a big step forward in putting the well-being of Americans before the boundless profits of big polluters. Carbon pollution is dangerous to our planet and our health. The Environmental Protection Agency has the right and the duty to keep our communities healthy and now the path is clear for them to curb this dangerous pollution, which threatens our families and planet. We applaud the court's decision and stand with the EPA as they continue to fight for the health of American families."
    Fred Krupp, President of Environmental Defense Fund (EDF) said, "Today's ruling by the court confirms that EPA's common sense solutions to address climate pollution are firmly anchored in science and law. This landmark decision will help secure a healthier and more prosperous future for all Americans. Today is a good day for climate progress in America and for the thin layer of atmosphere that sustains life on Earth." EDF's outside legal counsel Sean Donahue, who presented oral arguments to the court in defense of these protections said, "EPA's reasonable steps to reduce climate pollution will benefit our environment, our economy, our health and our national security. Today's court ruling will help our country move forward toward a clean energy future."
    [Note: No immediate reaction to the ruling was available from industry or state government participants at press time.]
    Access the complete opinion (click here). Access the statement from Sen. Boxer (click here). Access the statement from Rep. Markey (click here). Access a release from Sierra Club (click here). Access the statement from EDF (click here). [#Climate, #Air, #MIAir, #MIClimate]
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Georgia-Pacific v. Northwest Environmental Defense Center

Jun 25: The U.S. Supreme Court has agreed to hear the appeal of Georgia-Pacific (GP) West, Inc. v. Northwest Environmental Defense Center (NEDC), Sup.Ct. No. 11-347, commonly referred to as the "forest roads" case. The case asks the Supreme Court to overturn a 2011 ruling by a three-judge panel of the U.S. Ninth Circuit Court which GP says reverses 35 years of law governing how rainwater runoff from forest roads is managed [See WIMS 12/14/12]. The Ninth Circuit's ruling said forest road operators in the states under its jurisdiction will be required to obtain Clean Water Act discharge permits for ditches, drains and culverts that channel rain runoff from their roads -- treating rain runoff the same as industrial sources.

    Mike Adams, Georgia-Pacific senior vice president of sourcing and fiber supply said, "We are pleased for the 2.5 million people and thousands of local economies that depend on forest products that the Supreme Court has decided to hear our appeal in this critical case. Today's decision is a significant step forward in protecting these jobs, especially in those states under the Ninth Circuit's jurisdiction. We along with numerous experts continue to believe the long-standing practice of regulating forest roads through state forestry best management practices is the most environmentally responsible way to oversee management of the nation's forest roads. We look forward to arguing our case before the Supreme Court in its next term."

    According to a release from GP, the U.S. Forest Service has estimated that, if the Ninth Circuit ruling were applied nationally, it alone would have to obtain 400,000 permits. Oregon counties estimate the decision will cost them $56 million to secure permits for their 20,000 culverts. Federal and state regulators will have to completely redesign forestry programs that have been in place for a generation. In the states of the Ninth Circuit -- Washington, Oregon, California, Arizona, Nevada, Idaho, Montana, Alaska and Hawaii -- the timber industry employs a million people. Nationally, it supports 2.5 million jobs and $87 billion a year in wages.
   Timothy Bishop, lead appellate attorney for the forestry industry said, "The Ninth Circuit's decision changing 35 years of law was a mistake in law as well as a mistake for jobs and the environment. EPA has said for 35 years that the most effective approach to managing rainwater runoff from forest roads is through state forestry best management practices designed for local conditions. In place of this long-standing and successful regulatory method, the Ninth Circuit substituted the rigid and costly national permitting scheme used to regulate discharges from factories, chemical plants, mines and other industrial facilities. The circuit's decision is contrary to the plain meaning of the law. And its requirements make no economic or environmental sense when applied to tens of thousands of miles of remote and dispersed roads -- roads that are used for multiple purposes including fire-fighting, recreation and intermittent logging.
    NEDC had advised the Supreme Court not to take on the controversial logging pollution lawsuit that began in Oregon. Mark Riskedahl of NEDC said, "If there was regulation of pollution coming off of highways and off of even residential streets, why shouldn't there be regulation of pollution coming off of industrial logging roads." Federal lawyers filed a brief to the court saying the court should leave it to Congress and the Environmental Protection Agency, to sort the issue out.
Access the SupCt docket for the case (click here). Access a release from GP (click here). Access a release from NEDC and link to the Federal brief (click here). [#Water, #Land]
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State of Oklahoma, et al v. U.S. EPA

Jun 22: In the U.S. Court of appeals, Tenth Circuit, Case Nos. 12-9526 & 12-9527. The Appeals Court issued a brief order indicating, "Petitioners, the State of Oklahoma, Oklahoma Industrial Energy Consumers, and the Oklahoma Gas & Electric Company, seek a stay pending review of that portion of the Environmental Protection Agency's final rule requiring the reduction of sulfur dioxide emissions at four electric generating units. We conclude that the stay factors have been met in this case, and we therefore grant the motion for stay pending hearing by the merits panel."
    The Oklahoma Attorney General, Scott Pruitt, issued a statement in response to the order saying, "This is a significant victory for the State of Oklahoma, and it temporarily prevents the EPA from enforcing a federal plan that will raise utility rates for Oklahoma consumers. The EPA exceeded its authority under the Clean Air Act and we will continue to challenge that decision to preserve the ability of Oklahoma stakeholders to create an Oklahoma solution."
    On June 7, U.S. EPA issued a final rule [77 FR 33642-33659], effective August 6, 2012, that finalizes revisions to the rules pertaining to the regional haze program. The rule finalizes EPA's finding that the trading programs in the Transport Rule, also known as the Cross-State Air Pollution Rule (CSAPR), achieve greater reasonable progress towards the national goal of achieving natural visibility conditions in Class I areas than source-specific Best Available Retrofit Technology (BART) in those states covered by the Transport Rule [See WIMS 6/7/12].
    Access the Order (click here). Access the statement from the OK AG (click here). Access an AP article on the order (click here). Access the complete FR Final Rule (click here). Access an EPA fact sheet on the final action (click here). Access EPA's Regional Haze Program website for more information (click here). [#Air]
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