On Tuesday the federal appeals court in Washington delivered a resounding victory for science, the rule of law, and common sense by upholding the Environmental Protection Agency’s landmark actions to start curbing the dangerous carbon pollution driving climate change.
Ruling unanimously in Coalition for Responsible Regulation v. EPA, the appeals court rejected each and every attack from the coal companies, power companies, trade associations, Koch-funded science-denying right-wing groups, and ultra-conservative elected officials that have sought to stop EPA from doing its job under the Clean Air Act to protect the American people from the dangers of global warming.
This is a huge victory for our children's future. The court’s ruling clears the way for EPA to keep moving forward under the Clean Air Act to limit carbon pollution from motor vehicles, new power plants, and other big industrial sources.
NRDC is an intervenor in these cases, helping EPA to defend its initial climate-protection actions, and I’ve never hidden my view that the challengers were shooting with blanks. Though part of a broad political attack on climate science and EPA, their lawsuits were not much of a legal threat on their own. The three-judge panel – Chief Judge David Sentelle (appointed by President Reagan) and Judges David Tatel and Judith Rogers (appointed by President Clinton) – appear to have agreed. Here’s their own summary of their ruling (opinion, p.16):
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. 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.
To the extent that these cases were brought to dress up the political pitch to Congress for blocking EPA and repealing the Clean Air Act’s climate-protection provisions, the court's decision is bad news. The decision confirms how hollow and political these cases were all along. It won't help the climate-deniers’ and EPA-bashers’ cause in Congress that a unanimous court, composed of both conservative and liberal judges, rejected every line of attack they mustered.
The “Endangerment” Finding
The court began by upholding the agency's careful determination, based on a mountain of scientific evidence, that carbon dioxide and other heat-trapping pollutants threaten our health and our planet. Referring to the Supreme Court’s landmark decision in Massachusetts v. EPA, the court said (p. 16):
We begin with a brief primer on greenhouse gases. As their name suggests, when released into the atmosphere, these gases act “like the ceiling of a greenhouse, trapping solar energy and retarding the escape of reflected heat.” Massachusetts v. EPA, 549 U.S. at 505. A wide variety of modern human activities result in greenhouse gas emissions; cars, power plants, and industrial sites all release significant amounts of these heat-trapping gases. In recent decades “[a] well-documented rise in global temperatures has coincided with a significant increase in the concentration of [greenhouse gases] in the atmosphere.” Id. at 504-05. Many scientists believe that mankind’s greenhouse gas emissions are driving this climate change. These scientists predict that global climate change will cause a host of deleterious consequences, including drought, increasingly severe weather events, and rising sea levels.
The panel rejected any effort to revisit the Massachusetts decision, pointedly noting (p. 23):
At bottom, § 202(a)(1) [of the Clean Air Act] requires EPA to answer only two questions: whether particular “air pollution”—here, greenhouse gases—“may reasonably be anticipated to endanger public health or welfare,” and whether motor-vehicle emissions “cause, or contribute to” that endangerment. … These questions require a “scientific judgment” about the potential risks greenhouse gas emissions pose to public health or welfare—not policy discussions. Massachusetts v. EPA, 549 U.S. at 534. In Massachusetts v. EPA, the Supreme Court rebuffed an attempt by EPA itself to inject considerations of policy into its decision.
The panel then rebuffed the challengers’ argument that instead of making a science-based determination on whether the carbon pollution from motor vehicles endanger health and welfare, EPA had to consider all of the economic consequences of the actions that decision would trigger under the Clean Air Act – including the supposed costs of permitting requirements for new industrial sources. “The statute speaks in terms of endangerment, not in terms of policy, and EPA has complied with the statute.” (p. 25)
The court then disposed of the challengers’ far-fetched attacks on scientific issues. The challengers claimed that instead of exercising its own judgment, EPA had delegated or out-sourced its decision-making to expert scientific groups including the Intergovernmental Panel on Climate Change and the National Academy of Science. The court said (p. 27):
This is little more than a semantic trick. EPA did not delegate, explicitly or otherwise, any decision-making to any of those entities. EPA simply did here what it and other decision-makers often must do to make a science-based judgment: it sought out and reviewed existing scientific evidence to determine whether a particular finding was warranted. It makes no difference that much of the scientific evidence in large part consisted of “syntheses” of individual studies and research. Even individual studies and research papers often synthesize past work in an area and then build upon it. This is how science works. EPA is not required to re-prove the existence of the atom every time it approaches a scientific question.
The court continued with these “money quotes” on the science (pp. 28-29, 30):
The body of scientific evidence marshaled by EPA in support of the Endangerment Finding is substantial. EPA’s scientific evidence of record included support for the proposition that greenhouse gases trap heat on earth that would otherwise dissipate into space; that this “greenhouse effect” warms the climate; that human activity is contributing to increased atmospheric levels of greenhouse gases; and that the climate system is warming.
To recap, 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. EPA further had evidence of current and future effects of this warming on public health and welfare. Relying again upon substantial scientific evidence, EPA determined that anthropogenically induced climate change threatens both public health and public welfare. It found that extreme weather events, changes in air quality, increases in food- and water-borne pathogens, and increases in temperatures are likely to have adverse health effects. … The record also supports EPA’s conclusion that climate change endangers human welfare by creating risk to food production and agriculture, forestry, energy, infrastructure, ecosystems, and wildlife. Substantial evidence further supported EPA’s conclusion that the warming resulting from the greenhouse gas emissions could be expected to create risks to water resources and in general to coastal areas as a result of expected increase in sea level. … Finally, EPA determined from substantial evidence that motor-vehicle emissions of greenhouse gases contribute to climate change and thus to the endangerment of public health and welfare.
The court rejected complaints that these findings are not completely certain (p. 31): “Requiring that EPA find ‘certain’ endangerment of public health or welfare before regulating greenhouse gases would effectively prevent EPA from doing the job Congress gave it in § 202(a)—utilizing emission standards to prevent reasonably anticipated endangerment from maturing into concrete harm.”
The court specifically rejected Texas’s claim that EPA needed to be able to draw a bright line between the concentration of carbon pollution that is safe and the concentration where it becomes dangerous. This claim, the court said (p. 34),
is no more than a specialized version of Industry Petitioners’ claim that the scientific record contains too much uncertainty to find endangerment. 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.
Lastly, the court rejected the challengers’ conspiratorial claims based on excerpts from the Climategate hacked emails and a handful of isolated – and corrected – scientific errors found among the tens of thousands of scientific papers underlying the findings of the IPCC and other expert bodies.
The Clean Car Standards
The court next upheld EPA’s clean car standards issued in 2010, following the landmark agreement President Obama announced in 2009 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 upheld yesterday 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.
Far from joining the challengers’ attack on the clean car standards, all of the domestic and import car makers supported EPA in this litigation.
The challengers claimed EPA could have left vehicle standards entirely to the Transportation Department. The court had no trouble turning these attacks aside (p. 41): “The Supreme Court dismissed a near-identical argument in Massachusetts v. EPA, rejecting the suggestion that EPA could decline to regulate carbon-dioxide emissions because the Department of Transportation (DOT) had independent authority to set fuel-efficiency standards.” The court also had no trouble rejecting the claim, like the one made against the endangerment finding, that EPA had to consider all the consequences of the permitting program for industrial sources before setting standards for cars (p. 44).
Pollution Limits for New Power Plants and Factories
That brings us to the challengers’ attacks on the construction and operating permit requirements for the biggest industrial sources of carbon pollution.
The 1977 Clean Air Act amendments state that each new or modified source emitting more than certain amounts of pollution needs a permit that reflect the best available control technology (BACT) for each air pollutant subject to regulation under the Act. (Large sources also need operating permits under the 1990 amendments, collecting all applicable emission limits in a single document for enforcement purposes.) In regulations issued as early as 1978, EPA has consistently read the law to provide that the permit requirements apply automatically when new pollutants come under emission standards set under any other part of the Act.
When EPA issued the carbon pollution standards for vehicles in 2010, the agency also issued the “Tailoring Rule” to respond to one anomaly in applying these permit requirements to greenhouse gases. The permit requirements nominally apply to each new source that emits (depending on the industrial category) at least 100 or 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. Smaller ones are exempt.
Carbon dioxide, however, is emitted in much larger amounts than any other pollutant. EPA found that if it applied the 100- or 250-ton cut-offs 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 construction 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. So contrary to oft-repeated 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.
In these cases, the state and industry challengers began with arguments that the construction permit and BACT requirements do not apply to greenhouse gases at all, or only to a limited set of sources or in restricted areas. EPA (and the intervenors) responded that these arguments could not be made now because they could have been raised, and actually were raised, in challenges to the permit regulations EPA issued 30 years ago. There are special circumstances permitting suits after that 60-day deadline, but EPA contended they were not present here.
This is the only place the court ruled against EPA, holding that the 60-day deadline did not block these suits because at least some of the current petitioners had no reason or opportunity to challenge the regulations back then. These petitioners were not affected by the pollutants covered back then, and they could not reasonably have been expected to anticipate the subsequent coverage of greenhouse gases. Had these groups challenged EPA’s interpretation in 1978, “the court would have lacked jurisdiction under Article III of the Constitution because their alleged injuries were only speculative.” (p.49)
But having decided that these challenges could be brought now, the court rejected them on the merits. EPA’s reading of the law, the court held, was “statutorily compelled” (p. 54) – the permitting provisions applied automatically to greenhouse gases, by operation of law, when the motor vehicle standards took effect. After several pages of careful review of the statutory provisions, the court concluded (pp. 58-59):
In sum, we are faced with a statutory term—“any air pollutant”—that the Supreme Court has determined is “expansive,” and “unambiguous[ly]” includes greenhouse gases. Massachusetts v. EPA, 549 U.S. at 529. Moreover, the PSD program requires covered sources to install control technology for “each pollutant” regulated under the CAA, 42 U.S.C. § 7475(a)(4), and to establish that they “will not cause, or contribute to, air pollution in excess of any . . . emission standard . . . under [the CAA].” Id. § 7475(a)(3) (emphasis added). These provisions demonstrate that the PSD program was intended to control pollutants regulated under every section of the Act. Finally, Congress’s “Declaration of Purpose” expressly states that the PSD program was meant, in part, to protect against adverse effects on “weather” and “climate”—precisely the types of harm caused by greenhouse gases. See id. § 7470(1). Given all this, we have little trouble concluding that “any air pollutant” in the definition of “major emitting facility” unambiguously means “any air pollutant regulated under the CAA.”
The court rejected contentions that the permit provisions applied only to “local” pollutants or to pollutants covered by national ambient air quality standards (NAAQS), or only if a source both emits sufficient amounts of a NAAQS pollutant and locates in an area meeting that same NAAQS, saying (p. 72):
We thus conclude that EPA’s 34-year-old interpretation of the PSD permitting triggers is statutorily compelled: a source must obtain a permit if it emits major amounts of any regulated pollutant and is located in an area that is in attainment or unclassifiable for any NAAQS pollutant.
That left one remaining issue: whether EPA could at least temporarily “tailor” the program to only the biggest sources by setting the higher emission thresholds for greenhouse gases. Here the challengers ran smack into a fatal problem: they lacked “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. The court found (p. 77) that the challengers had fallen “far short” of proving their standing: “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.”
Texas argued the challengers could get relief on the rebound if the court voided EPA’s higher permitting thresholds and made the program broader, because Congress would surely intervene to keep smaller sources from falling under the then-expanded permitting requirements. The court found the prospect of passing legislation to change the permitting requirements far too speculative: “We have serious doubts as to whether, for standing purposes, it is ever “likely” that Congress will enact legislation at all.” To illustrate the difficulties in passing legislation, the court colorfully cited a 1970s-vintage cartoon, Schoolhouse Rock: “I’m Just a Bill”, for the proposition that “It’s not easy to become a law.” (p. 78-79)
Texas made one last-ditch – and patently insincere – argument that it had standing on the same basis as Massachusetts – loss of coastline to rising sea levels. Here one senses a flash of anger from the court (p. 80):
Essentially, State Petitioners’ reply brief contends that, contrary to the position taken in the opening brief, they want more regulation, not less, and that they wanted regulation sooner rather than later. And because the Commonwealth of Massachusetts had standing to seek regulation of greenhouse gases in Massachusetts v. EPA, State Petitioners argue that they now have standing to seek more regulation of greenhouse gases as well.
This argument, the court found, was “completely without merit.” The court offered several technical reasons to reject the state’s new argument – that Texas had left it to the reply brief and had introduced no evidence to support its claim of coastal injury – but the court’s distaste for the state’s pretense comes through clearly.
For the challengers: Virginia’s attorney general, known for vigorously and abusively pursuing the climate science denial agenda, has already promised to seek Supreme Court review. But many observers doubt the High Court will take another climate case now – especially given a unanimous decision from judges spanning the appellate court’s ideological range, and a decision that so closely and persuasively hews to the Supreme Court’s Massachusetts decision.
For EPA: By upholding EPA’s climate-protection actions taken so far, the court decision gives EPA the green light to continue doing its job under the Clean Air Act. EPA is already beginning to address the number one source of carbon pollution, America’s fleet of fossil fuel-fired electric power plants. EPA is nearing completion of the first-ever carbon pollution standards for new power plants, under Section 111 of the Clean Air Act. As of last Monday, a record-smashing 2.25 million Americans had already raised their voices in comments supporting EPA action to curb carbon pollution from both new and existing power plants. See here for the legal and technical comments of NRDC and our partner organizations. We expect a final decision on the new source proposal later this year, and quick follow-on action on existing plants.
For Congress: The court’s decision, as I said, shows how hollow and political are the arguments of the EPA-bashers and climate science-deniers in Congress. You can say anything you want in a press release or even a Congressional hearing. But bogus arguments fall apart when you have to prove them in court. One can hope that the court’s solid rejection of the challengers’ bogus climate-science claims will give some of the Congress’s most prominent climate deniers pause.
Sadly, there’s no sign that most Republicans in Congress are ready to stop their ceaseless attacks on EPA, on climate science, and the Clean Air Act. Within minutes after the court’s decision, Energy and Commerce Committee chairman Fred Upton was out there calling for repeal of EPA’s climate-protection authority and overturning the court’s decision.
And on Wednesday, one day after the court upheld the clean car standards, the House appropriations committee adopted, on partisan lines, an amendment from Rep. Steve Austria (R-OH) to block EPA from issuing the second round of clean cars standards for the years through 2025 – even though these gasoline- and money-saving standards enjoy the support of America’s auto makers and the vast majority of the American people. The Senate and the president have blocked these senseless measures before, and they have even stronger ammunition going forward, given the court’s strong affirmation of EPA’s endangerment finding and its first carbon pollution standards.
Avoiding the extraordinary dangers of climate change eventually will require new legislation to supplement the Clean Air Act and our other existing clean energy laws. But for now, these are the tools we have, and this week’s court decision ratifies EPA’s first steps to use them. We’ll continue to support vigorous EPA action to make the carbon pollution cuts and clean energy investments we need to safeguard our children’s future.