GOP & Industry Groups Say GHG Decision Is "Devastating Blow"

Jun 27: As WIMS reported yesterday the unanimous decision by the U.S. Court of Appeals, D.C. Circuit in the case of Coalition for Responsible Regulation v. U.S. EPA, and related consolidated cases upholding EPA authority to regulated greenhouse gases (GHG) under the Clean Air Act [See WIMS 6/26/12] was widely applauded by Democratic leaders and environmental organizations. Reactions from Republican leaders and industry groups were not available at press time. The following reactions of Michigan's Representative Fred Upton, Senator Inhofe and the industry coalition involved in the lawsuits were released later in the day.

 

    House Energy and Commerce Committee Chairman Fred Upton (R-MI) issued a statement in response to the ruling saying, "While some in Washington may claim today's court ruling is a win for the Obama administration, it delivers a devastating blow to the U.S. economy and American consumers. After enduring 40 consecutive months of higher than eight percent unemployment, we cannot afford the EPA's continued expansion of red tape that is slowing economic growth and threatening to entangle millions of small businesses. EPA's rules will impose billions of dollars in compliance and delay costs and represent an unprecedented expansion of EPA authority that has the potential to affect virtually every sector of the economy and touch every household. We have a legislative solution that stands up for American workers. The House passed my bill, H.R.910, to stop this power-grab by the Obama administration and block EPA's cap-and-trade agenda that threatens to drive energy prices higher, destroy jobs, and hamstring our economic recovery.

   

    Senator James Inhofe (R-OK), Ranking Member of the Senate Committee on Environment and Public Works, and a major critic of the Administration's GHG regulations and climate change science commented the decision saying, "This 'big win' for the Obama EPA is a huge loss for every American, especially those in the heartland states which rely on fossil fuel development and the affordable energy that comes with it. EPA's massive and complicated regulatory barrage will continue to punish job creators and further undermine our economy. This is the true agenda that President Obama is trying to hide under disingenuous reelection rhetoric about an 'all of the above' approach to energy.

    "And what will Americans get in return for this regulatory nightmare? Even EPA Administrator Lisa Jackson said that these rules will have no effect on the climate so it will be all pain for no environmental gain. Today's court ruling should be a wake-up call for the United States Senate to do its job and prevent what an author of the Clean Air Act amendments, Representative Dingell, called a 'glorious mess.' Last year 64 Senators went on record as wanting to stop these devastating greenhouse gas regulations from taking effect -- it's time they actually do so."

    "The Obama administration is attempting to regulate greenhouse gases in the absence of legislation. Congress and the American people rejected cap-and-trade legislation, but unelected bureaucrats at the EPA are pushing through harmful regulations that will serve as a massive energy tax on American businesses and families. H.R.910 will reassert Congress' authority to direct public policy and will protect Americans from EPA's overreach."

    National Association of Manufacturers (NAM) President and CEO Jay Timmons released a statement on behalf of the industry coalition on the ruling by the U.S. Court of Appeals for the D.C. Circuit saying, "Today's ruling is a setback for businesses facing damaging regulations from the EPA. The Clean Air Act was not designed to regulate greenhouse gases, and even the EPA said that it could not comply with the statute as written to implement these regulations.

    "The EPA's decision to move forward with these regulations is one of the most costly, complex and burdensome regulations facing manufacturers. These regulations will harm their ability to hire, invest and grow. By moving forward, the EPA is adding to the mounting uncertainty facing manufacturers of all sizes. We will be considering all of our legal options when it comes to halting these devastating regulations. The debate to address climate change should take place in the U.S. Congress and should foster economic growth and job creation, not impose additional burdens on businesses."

    In a release, NAM said it is "reviewing the court's decision and will consider further legal options on appeal. The EPA's greenhouse gas regulations will eventually require new burdensome permitting requirements for more than 6 million stationary sources, including 200,000 manufacturing facilities, 37,000 farms and millions of other sources such as universities, schools, hospitals and even American homes -- impacting every aspect of our economy."

    The members of the coalition include American Frozen Food Institute; American Fuel & Petrochemical Manufacturers; American Petroleum Institute; Brick Industry Association; Copper & Brass Fabricators Council, Inc.; Corn Refiners Association; Glass Association of North America; Glass Packaging Institute; Independent Petroleum Association of America; Indiana Cast Metals Association; Michigan Manufacturers Association; Mississippi Manufacturers Association; National Association of Home Builders; National Association of Manufacturers; National Oilseed Processors Association; NFIB Small Business Legal Center; North American Die Casting Association; Specialty Steel Industry of North America; Tennessee Chamber of Commerce & Industry; Western States Petroleum Association; West Virginia Manufacturers Association; and Wisconsin Manufacturers & Commerce.

    Access the statement from Rep. Upton (click here). Access the statement from Sen. Inhofe (click here). Access the NAM release (click here). Access the complete opinion (click here). [#Climate, #Air, #MIAir, #MIClimate, #CADC]

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Building Industry Association of WA v. WA State Bldg Code

Jun 25: In the U.S. Court of Appeals, Ninth Circuit, Case No. 11-35207. Appeal from the United States District Court for the Western District of Washington. The Appeals Court explains that the Energy Policy and Conservation Act of 1975 (EPCA), establishes nationwide energy efficiency standards for certain residential home appliances, and expressly preempts state standards requiring greater efficiency than the Federal standards. It nonetheless exempts from preemption state building codes promoting energy efficiency, so long as those codes meet certain statutory conditions. This case is a challenge to the State of Washington's Building Code brought by the Building Industry Association of Washington (BIAW), along with individual builders and contractors.

 

   The impetus for the challenge is the State's 2009 requirement that new building construction meet heightened energy conservation goals. This is the first case at the appellate level to consider EPCA's preemption-exemption provision. Plaintiffs-

Appellants (Plaintiffs) argue that the Building Code does not satisfy EPCA's conditions for exemption. The district court, however, held that Washington had satisfied EPCA's conditions, and therefore was not preempted. The Appeals Court affirmed the district court decision and explains that to escape preemption, a state's building code must satisfy the seven conditions codified in 42 U.S.C. § 6297(f)(3). The two at issue here are § 6297(f)(3)(B) and (C).

 

    Under subsection (B), a state's building code cannot require a covered product -- energy consuming fixtures such as water heaters and refrigerators -- to be more efficient than the standards established by the United States Department of Energy

(DOE"). The State of Washington's Building Code requires builders to reduce a building's energy use by a certain amount, and provides a number of options from which a builder may choose how to meet that requirement. Some of the options involve the installation of products that have an efficiency that exceeds the federal standards. These options, according to the builders, also happen to be cheaper than the other options. The builders contend that they are therefore being "required" to use products that exceed the Federal standards, in violation of subsection (B).

 

    On the subsection (B) issue the Appeals Court rules, "We hold that a builder is not 'required' to select an option, within the meaning of subsection (B), simply because there is an economic incentive to do so. Section 6297(f)(3)(B) is violated when the code requires a builder, as a matter of law, to select a particular product or option. The Supreme Court has recognized this to be what a requirement entails. See Bates v. Dow Agrosciences LLC, 544 U.S. 431, 445 (2005) (rejecting a preemption challenge, and holding that the term 'requirement' in a different statute means 'a rule of law that must be obeyed'). Plaintiffs in this case are thus not 'required' to choose the less expensive, more efficient option."

 

    Plaintiffs' also challenge under § 6297(f)(3)(C) of the Federal law which the Appeals Court said "is more factual in nature." Subsection (C) provides that a building code must grant credits on the basis of how much each option reduces energy use or cost, without favoring particular products or methods. Plaintiffs argue that the Building Code here does not satisfy this condition, because they contend its credits are not granted on a one-for-one equivalent energy use basis. The Appeals Court says their argument relies solely upon a BIAW member's declaration. The district court rejected the declaration after finding that the witness was not qualified as an expert to challenge the State's calculations of equivalent energy use savings produced by using particular products or building methods.

 

    The Appeals Court rules, "We hold there was no abuse of discretion in disallowing that evidence. The evidence that is in the record supports the district court's conclusion that the state-assigned credit values satisfy the 'one-for-one equivalent energy use' requirement of subsection (C). . . We therefore hold that the Washington Building Code satisfies the conditions Congress established for enforcement of state and local building codes consistent with federal energy law and we affirm the judgment of the district court in favor of the State."

 

    Access the complete opinion (click here). [#Energy/Efficiency, #CA9]

 

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State of VT Dept. of Pub. Serv v. Nuclear Regulatory Commission

Jun 26: In the U.S. Court of Appeals, D.C. Circuit, Case No. 11-1168 & 11-1177. On Petition for Review of a Final Order of the U.S. Nuclear Regulatory Commission. The Vermont Department of Public Service (DPS) and the New England Coalition (NEC) petition for review of a decision of the Nuclear Regulatory Commission (NRC, Commission), issuing to Entergy Nuclear Vermont Yankee, LLC and Entergy Nuclear Operations, Inc. (collectively, Entergy) a renewed license to operate the Vermont Yankee Nuclear Power Station (Vermont Yankee). The petitioners contend the license renewal was unlawful because Entergy failed to furnish a state Water Quality Certification (WQC) which they assert was required under section 401(a)(1) of the Clean Water Act (CWA).

 

    The Appeals Court ruled, "We conclude the petitioners waived their WQC objection because they repeatedly failed to present it directly to the Commission and thereby failed to exhaust their administrative remedies." Despite the fact that Petitioners had numerous administrative opportunities, which the Appeals Court detailed, the petitioners contend it would have been futile to raise

the section 401 issue before the Commission, which they said, "has clearly held that the issue of whether an applicant possesses a required CWA authorization is not appropriate for consideration as a contention in NRC licensing proceedings." .

 

    The Appeals Court said, "None of the decisions they cite, however, supports their contention the Commission would have refused to decide the issue here, namely, whether an applicant for license renewal has obtained the requisite section 401 WQC before a license issues. . . we conclude that the petitioners failed to exhaust their administrative remedies before the Commission and thereby waived the right to raise their section 401 objection on judicial review. Accordingly, we deny their petitions for review."

 

    Access the complete opinion (click here). [#Energy/Nuclear, #CADC]

 

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