Shooting with Blanks at the OK Corral

UPDATE 6/26/2012 - In an unanimous opinion covering four cases, the U.S. Court of Appeals for the District of Columbia upheld EPA’s “endangerment” determination, its clean car standards, and its pollution permit requirements for big new industrial facilities. Read more.

Next week a rogues’ gallery of science-denying industry associations, right-wing advocacy groups, Tea Party backers, and ultra-conservative elected officials get their day in court – two days, actually – to challenge the Environmental Protection Agency’s “endangerment finding” and its other actions under the Clean Air Act to start curbing the carbon pollution that drives dangerous climate change. 

A three-judge panel of the federal appeals court in Washington (Chief Judge David Sentelle, Judge David Tatel, and Judge Judith Rogers) will hear oral arguments on February 28th and 29th in a collection of cases seeking to overturn EPA’s scientific finding, its landmark clean car standards, and its first steps to cut the emissions of big new industrial polluters. 

The challengers have come gunning for EPA, but they are just shooting with blanks.

EPA took these actions in response to the Supreme Court’s landmark 2007 decision in Massachusetts v. EPA.  There the High Court held that it’s EPA’s job under the Clean Air Act to protect us from dangerous carbon pollution that threatens our health and drives our increasingly extreme weather.  The Court unanimously reaffirmed Massachusetts last year in a second case, American Electric Power v. Connecticut, concerning power plants.

So here’s a rundown on the coming shoot-out.

Who are these guys? 

Dozens of lawsuits have been joined together under the name Coalition for Responsible Regulation v. EPA.   A partial list of the petitioners speaks volumes: 

  • Coal companies and trade associations, including the National Mining Association, Peabody Energy, and Arch Coal (new owner of the former Massey Energy)
  • Coal-burning utilities, including Southern Company and American Electric Power operating through their litigation arm, the Utility Air Regulatory Group
  • Oil companies, through the American Petroleum Institute, the American Fuel and Petrochemical Manufacturers, and the Western States Petroleum Association
  • Steel, cement, and other trade groups, including the American Iron and Steel Institute, the Portland Cement Association, and the National Association of Homebuilders 
  • Agribusiness interests, such as the National Cattlemen’s Beef Association and the American Farm Bureau Federation
  • Right-wing climate science deniers including the Koch-funded Competitive Enterprise Institute and FreedomWorks Foundation
  • Tea-party politicians, including Texas Governor Rick Perry, Virginia Attorney-General Ken Cuccinelli, and a dozen Republican members of Congress such as Michelle Bachmann and Joe Barton

NRDC has joined with other environmental organizations and state and local governments that have intervened to help defend EPA.

Do they have a case?

The raft of lawsuits is, first and foremost, part of a broader political attack on climate science and EPA that has been building since the Supreme Court’s 2007 ruling in Massachusetts v. EPA.  The Court held in that case that when Congress passed the Clean Air Act it gave EPA the responsibility to act when science shows that new pollutants endanger our health or welfare.  Carbon dioxide, the Court held, is an air pollutant just like any other substance emitted into the air from our cars or factories.  Thus, it was EPA’s job to make a science-based determination whether carbon pollution is dangerous, and to set emission limits if the answer is “yes.” 

Flush with support from the same industries and ideological conservatives that have brought these cases, the Republican-controlled House of Representatives has repeatedly voted to overturn the Supreme Court’s decision, repeal EPA’s authority over carbon pollution, and undo the endangerment finding and follow-on actions.  (For a list of the House’s many climate change votes, go here and click on the links for “search by topic” and “climate change”.)  The president promised to veto these measures, and the Democratic-led Senate voted them down

While there are still loud voices of denial, the public strongly backs EPA.  And while the usual suspects in the House of Representatives can still be counted on to attack EPA, their legislation is unlikely to make it through the full Congress.

As lawsuits themselves, these cases aren’t much of a threat.  In late 2011, the D.C. Circuit and the New Orleans-based Fifth Circuit denied three separate requests for a “stay” (the equivalent of a preliminary injunction).  The D.C. Circuit found that the challengers had failed even to show that they had been harmed:  “Specifically, with regard to each of the challenged rules, petitioners have not shown that the harms they allege are certain, rather than speculative, or that the alleged harms will directly result from the actions which the movants seek to enjoin.”

So now, after a year of further briefing, the cases have arrived at their final stop.  Here’s the lowdown on each one.

The “endangerment” finding

You would be hard pressed to find an independent legal expert who thinks the challenge to EPA’s science-based endangerment finding has a ghost of a chance.  EPA is plainly following the Clean Air Act and the Supreme Court’s decision in Massachusetts v. EPA.  You could not ask for a stronger record to back EPA’s decision, or a more transparent and thorough process. 

The endangerment finding stands atop an enormous, multi-layered pyramid of peer-reviewed scientific research and assessment developed over decades.  At the base of the pyramid are tens of thousands of scientific publications, each one peer-reviewed before acceptance in a scientific journal. 

This immense body of climate change research was then synthesized in multiple, independent scientific assessments.  The three main assessments were performed by the Nobel prize-winning Intergovernmental Panel on Climate Change, the U.S. Global Climate Research Program, and the U.S. National Academy of Sciences.  They involved thousands of scientists trained in pertinent fields.  Each assessment was subject to rigorous peer-review. 

On this base, EPA prepared a detailed summary of these peer-reviewed assessments and the underlying peer-reviewed scientific literature.  EPA then subjected its own summary to review by a dozen top federal climate science experts – not once, not twice, but three times.  The final endangerment finding stands at the very top of the pyramid.    

In this thorough scientific process, no alternative theory – from sunspots, to clouds, to cosmic rays – has gone uninvestigated.  And every wild charge of scientific fraud – aka, Climate-gate – has been examined and refuted.  The challengers’ briefs throw some of this spaghetti at the wall once more, but none of it will stick.  The Massachusetts decision and the D.C. Circuit’s own precedents will lead it to uphold EPA’s endangerment finding.

The clean car standards

In May 2009, President Obama announced the first of three landmark agreements with the automobile industry, auto workers, states, and environmental organizations to set combined carbon pollution and fuel economy standards under the Clean Air Act and the Energy Independence and Security Act.  The standards cover model years 2012-16 and, by the fifth year, will cut carbon pollution by 30 percent while saving consumers up to $3,000 over the life of the car.  Subsequent agreements have covered heavy trucks and established a second round of money-saving standards for cars, SUVs, minivans, and pickups, doubling miles per gallon and cutting carbon pollution in half by 2025.

The lawsuits next week challenge the first set of clean car standards, claiming the administration should not have set Clean Air Act standards at all and should have relied on the fuel economy standards alone.  In that way, the challengers argue, EPA could have avoided triggering pollution limits for new industrial facilities (see below).  EPA – joined by both the auto industry and the environmental intervenors – shows that its clean air standards actually result in much greater clean-up and larger consumer savings than the fuel economy standards alone.  Further, the Supreme Court already ruled in Massachusetts that the fuel economy law does not trump the Clean Air Act, which requires EPA to set emission standards if carbon pollution is dangerous. 

So this case is going nowhere either.

Pollution Limits for New Power Plants and Factories

While the ideological challengers want to tear EPA’s entire house down, the goal of the slightly less radical industry litigants is to block requirements for big new or expanded industrial facilities to obtain permits before construction showing that they will use the best available control technology (BACT).

The pre-construction permit requirement – known as “Prevention of Significant Deterioration” or “New Source Review” – is 35 years old, dating from the 1977 Clean Air Act amendments.  The law states that each new or modified source that emits large amounts of pollution needs a permit with limits reflecting BACT for each regulated pollutant.  Since 1977, these permit requirements have extended automatically to new pollutants that become subject to health and safety standards under other parts of the Act.   

The regulation actually under review is called the “Tailoring Rule,” because in it EPA responded to one anomaly in the operation of the permit requirements.  Those requirements nominally apply to each new source that emits at least 250 tons per year of a regulated pollutant.  The committee reports on the 1977 legislation show that Congress chose this amount to distinguish between big sources and small ones.  Big industrial sources, Congress determined, could and should bear the cost of the permit review and using state-of-the-art pollution controls.  Carbon dioxide, however, is emitted in much larger amounts than any other pollutant.  EPA found that if the 250-ton cut-off were applied to carbon pollution, it would sweep in much smaller sources than the industrial projects Congress intended to be covered by permitting, and it would overload permitting agencies with thousands more applications  than they could handle. 

So EPA “tailored” the permit requirements by devising higher cut-offs to use for carbon pollution sources, at least for an initial period.  At present, a new source needs a PSD permit for carbon dioxide only if it emits at least 100,000 tons per year; an expanded source needs a permit if its annual CO2 emissions will rise by at least 75,000 tons.  At those levels, the permit requirements capture the sources responsible for an estimated 86 percent of all industrial carbon emissions increases.  Contrary to the challengers’ claims that millions of tiny industrial, commercial, and even residential facilities will be drawn into the program, the permit requirements remain focused on a few hundred to a few thousand projects at power plants and other really big industrial sources.

The challengers have three big obstacles to overcome.  First, they lack “standing.”  In order to challenge government action, you have to show that you, or your members, are hurt by that action, and would be helped by the court’s blocking that action.  By raising the cut-offs from 250 tons to 75,000 or 100,000 tons, all EPA has done is help industry and state permitting agencies by narrowing the coverage of the permit requirements.  They would be hurt, not helped, if their lawsuit succeeded in striking down the change from 250 tons to the higher amounts.

Second, to the extent they are complaining that EPA’s long-standing regulations violate the Clean Air Act by applying the permit requirements to new sources emitting all regulated pollutants, their suit is more than 30 years too late.  The Clean Air Act requires petitioners to sue over a regulation within 60 days after it is announced.  In fact, industry groups did challenge that specific regulation in 1978 and lost, in case called Alabama Power v. Costle.  There are special circumstances permitting suits after that 60-day deadline, but they are not present here.  In short, it’s way too late to challenge these regulations.

Finally, if the court reaches the merits, it will find that those 30-year-old regulations merely follow the requirements of the Clean Air Act itself.  As this court found in Alabama Power, the law itself provides that the permit requirements apply to new and modified sources emitting each regulated pollutant.

What happens next?

Decisions in these cases are likely by summer.  If the appeals court upholds EPA, it’s likely that at least some of the challengers will ask the Supreme Court for review.  It’s unlikely the High Court will be interested.  As I noted, the Court unanimously affirmed its 2007 Massachusetts decision just last June, holding in American Electric Power that it’s EPA’s responsibility to address power plant carbon pollution, and specifically taking note of EPA’s tailoring rule.  The Court is not likely to want to review the appeals court’s decisions on steps that merely implement its prior holdings.

Hopefully, EPA will soon take further actions to protect us from dangerous carbon pollution.  After years of delay, EPA is on the verge of issuing the first national limits on carbon dioxide emissions from new power plants to be built over the next decade.  Then the agency needs to move on to existing power plants, which put a massive 2.3 billion tons of CO2 into our air each year.  On top of the endangerment determination and the clean car standards, those would be big achievements indeed.