The full U.S. Court of Appeals in Washington today rejected petitions from industry and state challengers to revisit a three-judge panel’s unanimous ruling last June, in Coalition for Responsible Regulation v. EPA, upholding the Environmental Protection Agency’s landmark endangerment finding and its first carbon pollution limits for new motor vehicles and big new industrial sources.
I described the June ruling here. It was a huge victory, and it cleared the way for EPA to keep moving forward on its obligations under the Clean Air Act to protect the American people from the dangerous carbon pollution that drives global warming.
The vote of the whole court was 6-2, with dissents by Judges Janice Rogers Brown and Brett Kavanaugh (both appointed by President George W. Bush), and a strong rebuttal by the three judges who wrote the original opinion – David Sentelle (appointed by President Reagan) and Judith Rogers and David Tatel (both appointed by President Clinton).
The dissenters plainly sought to buttress the inevitable appeal to the Supreme Court by the assorted orcs and goblins that brought these cases. One industry attorney remarked, according to E&E’s Greenwire (subscription required), that an appeal would follow “as surely as the climate has been changing since the Earth had an atmosphere.” (Given the petitioners’ penchant for attacking science, maybe that means “within the last 6,000 years.”)
Judge Brown’s dissent is a full frontal attack on the Supreme Court’s 2007 decision in Massachusetts v. EPA, where the high court held that carbon dioxide and other heat-trapping emissions are “air pollutants” within the reach of the Clean Air Act, and that EPA has a duty to curb those emissions if it determines these pollutants may reasonably be anticipated to endanger public health and welfare. This EPA duly found, on the basis of a mountain of scientific evidence, in 2009. While acknowledging that she’s bound by the Supreme Court’s ruling and that EPA may set standards for motor vehicles, Judge Brown said “I do not choose to go quietly.” Trying to show that EPA had improperly converted the Clean Air Act into “the Warm Air Act,” she repeated all the Bush administration and industry arguments that the high court had painstakingly rejected in Massachusetts.
Judge Brown and Judge Kavanaugh also argued that the Supreme Court hasn’t addressed applying the Clean Air Act to industrial sources of carbon pollution. This is not exactly true: in American Electric Power v. Connecticut, the Supreme Court turned aside lawsuits grounded in federal common law precisely because the Clean Air Act authorizes EPA to set limits on carbon pollution from power plants -- citing, among other provisions, the very permitting requirements at issue here.
Judge Kavanaugh asserted that the statute allows two “plausible” interpretations of the terms “any air pollutant” in those permitting provisions: one covering all air pollutants, including greenhouse gases, and the other covering only the six air pollutants for which there are national ambient air quality standards (NAAQS). He then argued that EPA was required to choose the latter, narrow interpretation because it would avoid the “absurd results” of subjecting thousands of tiny new and modified sources to the Act’s permitting requirements.
Judges Sentelle, Rogers, and Tatel responded forcefully to the two dissents. As for Judge Brown, they noted that “her quarrel is with the Supreme Court.” Responding to Judge Kavanaugh, they summarized the convincing analysis in their original opinion that the statutory text allows only one interpretation of “any air pollutant” – the broader one that EPA followed. As they found in June, that interpretation was “unambiguously correct.”
Judges Brown and Kavanaugh both repeat, as if proven, the industries’ “sky-is-falling” claims about the economic doom bound to come if the EPA is allowed to set carbon pollution limits – claims that show no sign of coming true since carbon pollution permitting began under EPA's Tailoring Rule in January 2011. I am sure we will hear this Chicken Little argument in the coming cert. petitions. In fact, though, there is no empirical evidence of projects stopped or deterred by the carbon permitting requirements.
Life seems to be going on.
Unfortunately, so does this case. As Bilbo Baggins sings, “The Road Goes Ever On.” But the orcs lose in the end.