CLIMATE:

Few legal options for losers in EPA rule challenge

After a federal appeals court upheld Obama administration greenhouse gas regulations yesterday, attention turned to what remaining legal options are left available to the challengers.

The choice is straightforward: Ask the U.S. Court of Appeals for the District of Columbia Circuit to rehear the case or immediately seek Supreme Court review.

A three-judge panel of the appeals court yesterday denied or dismissed challenges to four rules that are key to the administration's effort to regulate greenhouse gas emissions (Greenwire, June 26).

The industry groups and states that oppose the rules could in theory ask the full court to rehear the case en banc -- meaning all the court's active judges would be involved -- but most observers say it is unlikely the court would agree to such a request. The court rarely grants petitions for rehearing, especially when the panel ruling is unanimous, as it was yesterday.

That leaves the option of filing a petition with the Supreme Court. The chances of the justices taking up the issue are relatively slim as well, experts say.

In its unanimous ruling, the appeals court denied two industry- and state-backed petitions seeking invalidation of the so-called endangerment finding, the agency's original conclusion that greenhouse gases pose a health risk and should be regulated under the Clean Air Act, and the "tailpipe" rule that set greenhouse gas emissions standards for cars and light-duty trucks beginning with 2012 models.

The judges dismissed for lack of standing petitions challenging two other regulations: the "timing" rule, which required new controls of greenhouse gas emissions from stationary sources to be triggered Jan. 2, 2011, and the "tailoring" rule, which interprets the Clean Air Act in such a way that only major polluters are required to obtain permits for greenhouse gas emissions.

There are several reasons why the appeals court is unlikely to rehear the case if the petitioners request such a move. The court has a "general reluctance" to rehear cases, according to Sean Donahue, an attorney who represents environmental groups in the litigation.

"When they do, it is usually in cases where there was a dissent," he added.

The court has denied rehearing requests on several occasions in recent years even when there was a dissent, including in Massachusetts v. EPA, the case that -- when it ended up at the Supreme Court in 2007 -- led to the justices ruling that greenhouse gases could in theory be regulated under the Clean Air Act.

For a case to be reheard en banc, court rules require a majority of the eight active judges to vote in favor. As three of the judges were on the panel that upheld the regulations, all five of the other judges would have to vote for rehearing for it to happen.

The petitioners might not even bother seeking a rehearing and instead turn their attention to the Supreme Court. There, four of the nine justices have to vote in favor of a petition seeking review. The four dissenting justices in Massachusetts v. EPA are still sitting on the court and might, some legal experts speculate, have some interest in revisiting the ruling.

In yesterday's ruling, the appeals court repeatedly deferred to the Supreme Court's conclusions in Massachusetts v. EPA in finding that EPA's rules pass legal muster.

"Because the panel went on about how their hands were tied by Massachusetts v. EPA, the challengers may decide their best chance of success lies with the people who are in a position to say authoritatively what Massachusetts v. EPA requires," said one lawyer involved in the litigation on the industry side.

Not all agree with that assessment. Donahue said, "There will be plenty of parties willing to pay bright lawyers good money to try to come up with a theory" that would attract the interest of some justices, but he predicted that all the issues on the table would be "difficult candidates" for high court review.

Patrick Parenteau, an environmental law professor at Vermont Law School, said he could see no compelling reason why the Supreme Court would grant review, not least because likely swing vote Justice Anthony Kennedy -- who was in the majority in Massachusetts v. EPA -- is still on the court.

"There's not much chance of reversal unless Kennedy switches sides. ... So why bother?" Parenteau said.

Such thinking is not unheard of among the justices. This week, four justices who disagreed with the court's controversial 2010 ruling on campaign finance reform, Citizens United v. FEC, in which the court lifted restrictions on corporate and union election-related spending, voted against hearing a case out of Montana, American Tradition Partnership v. Bullock, that could in theory have led the justices to revisit the issue.

It was to no effect, as the five justices who were in the majority in Citizens United voted to summarily reverse the Montana ruling, in which the state's highest court had upheld state campaign finance restrictions on corporate-funded independent expenditures.

In the greenhouse gas litigation, the petitioners have so far said only that they are looking at their legal options but have not decided what to do.

Eric Groten, an attorney at Vinson & Elkins who represents several of the industry groups, said the possibility of seeking a rehearing or asking for Supreme Court review "will be seriously evaluated."

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