CLIMATE:

Even page limits are disputed in litigation over EPA regs

The legal arguments are just beginning to take shape in the court battle over U.S. EPA's plan to begin regulating greenhouse gases, but challengers and the Obama administration are already disagreeing over procedural issues such as the structure of court proceedings and the acceptable length for filings.

To date, more than 150 businesses, advocacy groups, trade associations and government entities have joined challenges to a series of four EPA rules that lay the foundation for regulations on carbon dioxide.

In the absence of action by Congress, the regulations would provide the first nationwide restrictions on the emissions that are contributing to global warming. And with the future of U.S. climate policy appearing more and more likely to be decided in the courtroom, attorneys on both sides are scrapping for every advantage they can get.

Leading plaintiffs such as the U.S. Chamber of Commerce, Competitive Enterprise Institute and Southeastern Legal Foundation have started pushing the U.S. Circuit Court of Appeals for the District of Columbia to designate all the challenges as "complex" litigation. That would allow the four agency rules to be examined by the same panel of judges, sparing repetitive briefs and conflicting decisions, they say.

In their motion, which was filed on Aug. 26, the groups said they also wish to avoid the possibility that EPA could play a "judicial review shell game." If the four rules are not reviewed together, they say, the agency could argue that claims "should always be dealt with in some docket other than the one at hand."

Meanwhile, the National Association of Manufacturers, the state of Texas and the Coalition for Responsible Regulation have asked the court to adjust the usual page limits for motions to put the new rules on hold.

Otherwise, the plaintiffs could end up providing the same background information over and over, adding thousands of extra pages to the proceedings. Attorneys for the groups spent a month negotiating with EPA, but there was still no agreement on page counts, the request says.

The groups "are, of course, not saying that they would file thousands of pages of motions," the plaintiffs wrote in a footnote. "However, if the relief they request herein is not granted, they will be forced to prosecute their stay motions within the confines of the default page limits, which will require them to file multiple individual motions in order to address all of the multiplicity of relevant issues and protect their interests."

EPA filed responses last Friday opposing the changes to page limits and most of the requests to coordinate the four sets of challenges.

Reviewing all four rules together would lead to confusion, EPA wrote in one filing. The agency described the page limits request as "exorbitant," arguing that it would let the plaintiffs devote more words to preliminary motions than the court usually allows for briefs on the central questions of a case.

"In short," EPA attorneys wrote, "petitioners' entire proposal is a recipe for chaos."

Linking lawsuits

The four EPA rules being challenged are December's "endangerment finding," which determined that greenhouse gases are a threat to human health and welfare; March's "triggering rule," a reconsideration of a George W. Bush-era memo that determined when greenhouse gases would be subject to regulation under the Clean Air Act; April's "auto rule," which set greenhouse gas emissions standards for cars and light-duty trucks; and May's "tailoring rule," which limited the newly triggered rules for stationary sources to the largest emitters.

Plaintiffs recently filed preliminary statements outlining the issues they intend to raise before the court. Though the outcome of the court cases will likely hinge on the question of whether EPA's rules comply with the Clean Air Act, an issue as minor as page limits could influence the eventual decision.

Many legal analysts have suggested that the most vulnerable pillar of EPA's climate program is the tailoring rule, which set higher emissions thresholds to prompt greenhouse gas regulations than stated in the letter of the Clean Air Act. The agency has argued that the change was necessary -- and legal -- because it avoided absurd results such as the regulation of emissions from apartment buildings, schools or churches.

Some environmental groups, such as the Center for Biological Diversity, are arguing that the agency set an arbitrary threshold that was higher than the Clean Air Act requires. Business and small-government advocacy groups say the need for the tailoring rule demonstrates the inappropriateness of using the Clean Air Act to regulate greenhouse gases.

In their statements, the plaintiffs spare no strong words in describing the implications of the rulemaking. By concluding that greenhouse gases pose a threat to human health and welfare, the U.S. Chamber wrote in its filing, "EPA has set in motion what easily may become the most far-reaching, onerous, and costly set of regulations ever adopted by any federal agency in American history."

Scott Schang, vice president for climate at the Environmental Law Institute, said the procedural battles didn't seem unusual considering the scope and complexity of the litigation. The motion to coordinate the cases makes particular sense for the plaintiffs, he said.

"It's not surprising the parties would ask the court for some guidance on how to handle all the motions and simultaneously try to find ways to advantage its cause. I'm sure each party perceives strategic advantages in their preferred approach," he wrote in an e-mail. "If you thought you had a weak case on the endangerment finding but a slam dunk on the tailoring rule, it sure would be nice to link them in the court's eyes."

Other business groups have weighed in on the procedural questions, generally agreeing that the cases should be heard together.

Nineteen states, led by California, filed a response proposing that the court combine only the triggering and tailoring rules. Under the proposal, which was also backed by New York City, challenges to the endangerment finding and auto rule would move forward by themselves.

"This alternative approach also honors the statutory structure of the Clean Air Act, which [challengers] completely overlook in their rush to lump the cases together ... under the guise that they have something to do with global warming," the filing says.

Click here to read the motion to coordinate the court cases.

Click here to read EPA's response to the coordination motion.

Click here to read the states' response to the coordination motion.

Click here to read the motion to adjust page limits.

Click here to read EPA's response to the page limits motion.