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D.C. Circuit Court Upholds EPA’s Greenhouse Gas Emissions Regulations

Beveridge & Diamond, P.C., June 28, 2012

On June 26, 2012, the U.S. Court of Appeals for the District of Columbia issued a per curium opinion upholding the EPA’s regulation of greenhouse gas (GHG) emissions..  Coalition for Responsible Regulation v. EPA, Nos. 09-1322, 10-1092, 10-1073, 10-1167 (D.C. Cir. Jul. 26, 2012).

In a single opinion, the D.C. Circuit addressed the four petitions to review the following EPA decisions and actions:

  • Coalition for Responsible Regulation, Inc. v. EPA, No. 09-1322, challenging EPA’s final “endangerment” and “cause or contribute” findings for GHGs from new motor vehicles (collectively referred to as the “Endangerment Finding”);
  • Coalition for Responsible Regulation v. EPA, No. 10-1092, challenging the Light Duty Vehicle Rule which established GHG emissions standards for light duty motor vehicles under Section 202 of the Clean Air Act;
  • Coalition for Responsible Regulation v. EPA, No. 10-1073, challenging the Tailoring Rule which increased the applicability thresholds for regulating GHGs under Prevention of Significant Deterioration (“PSD”) and Title V permitting programs for stationary sources; and
  • American Chemistry Council v. EPA, No. 10-1167, challenging EPA’s interpretation of the scope of the PSD permitting requirements for  GHGs based on “grounds arising after” the promulgation of the PSD rules in 1978.

The D.C. Circuit ruled that the Endangerment Finding was “neither arbitrary nor capricious,” rejecting the petitioners’ arguments that EPA should have considered policy concerns and regulatory consequences on stationary sources; that the scientific record was inadequate;  and that EPA failed to quantify the level of endangerment caused by GHGs.

Similarly, the Court ruled that the promulgation of the Light Duty Vehicle Rule was “neither arbitrary nor capricious” for failing to consider the cost impacts associated with triggering stationary source regulation under the PSD permitting program. 

Although the Court determined that at least some industry petitioners were timely in challenging EPA’s interpretation of the PSD permitting triggers, the Court held in a detailed discussion that the PSD program was “unambiguously” intended to cover “any pollutant” regulated under the Clean Air Act, including GHGs.  Slip Op. at 59.  The Court determined that “although we agree with industry petitioners that phrases like ‘any air pollutant’ are, in certain contexts, capable of a more limited meaning, they have failed to identify any reason that the phrase should be read narrowly here.  Nor do we know of one.  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.”  Slip Op. at 72. 

The Court did not address the merits of the Tailoring Rule, instead holding that it lacked jurisdiction to rule on the merits because the petitioners lacked standing.  The Court concluded that the petitioners had failed to establish that the Tailoring Rule “caused them ‘injury in fact,’ much less injury that could be redressed by the rules’ vacatur. . . . If anything, vacatur of the [T]ailoring [R]ule would significantly exacerbate petitioners’ injuries.”  Slip Op. at 77-78.  The Court dismissed all challenges to the Tailoring Rule for lack of jurisdiction.

The unpublished full slip opinion can be found here.

For more information, contact David M. Friedland, at (202) 789-6047, dfriedland@bdlaw.com, or Linda Tsang, at (202) 789-6073 or ltsang@bdlaw.com