CLIMATE:

Industry groups seek court rehearing over GHG regulations

Various industry groups and states have asked a federal appeals court to reconsider its decision to uphold Obama administration greenhouse gas regulations.

Among those seeking reconsideration of the U.S. Court of Appeals for the District of Columbia Circuit decision are the U.S. Chamber of Commerce; the National Association of Manufacturers; Peabody Energy Co.; and the states of Texas, Virginia and Alaska. A slew of briefs were filed Friday afternoon.

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

The 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.

The losing petitioners want either the three-judge panel to rehear the case or for the entire court of eight active judges to hear the case, a procedure known as rehearing en banc.

Both are likely to be long shots, legal observers point out. The court rarely rehears cases. When it does, it usually happens when one of the panel members has written a dissenting opinion. 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.

In the U.S. Chamber's brief, the business group's lawyers argue that the court's decision on standing was incorrect. The court held that the petitioners had failed to show that the tailoring or tailpipe rules had caused them any injury. The court noted that the tailoring rule's aim was to relieve the burdens on industry that would be imposed as a result of EPA regulating greenhouse gases.

But as the U.S. Chamber points out, after EPA made the endangerment finding, it was forced to effectively rewrite the Clean Air Act in order to prevent the "absurd consequences" that would have led to the regulations applying to nonindustrial sources like schools and apartment buildings.

The tailoring rule, the business group's lawyers wrote, "is not a disconnected rule to be evaluated in isolation."

It is instead "an integral part of a comprehensive new program of [greenhouse gas] regulation that was conceived and developed in the same timeframe," the lawyers wrote.

Thus, petitioners should be able to challenge the tailoring rule as if it and the endangerment finding were part of the same regulation, the U.S. Chamber maintains.

The business group also challenges the court's ruling on the endangerment finding. Among the arguments is the question of whether EPA had failed to consider "natural adaptation and mitigation patterns that predictably occur as climates change after time" when finding that greenhouse gases are a threat to public health.

The U.S. Chamber's lawyers claim that the U.N. science reports cited by EPA show only that the predicted impacts of climate change on demographic shifts are "natural, predictable human behaviors organically arising over long time spans."

In a separate brief, the National Association of Manufacturers insists that rehearing en banc is required in part due to the "extraordinary national importance" of the issue.

"Those regulations represent one of the most significant expansions of EPA's authority in the agency's history, extending its reach to millions of new sources across the Nation and potentially affecting every sector and every business in the country," NAM's lawyers wrote.

Sean Donahue, a lawyer representing environmental groups that support the regulations, said he had expected the petitions to be filed but was not unduly worried.

"Nothing in them calls into question the unanimous panel decision," he added.

On the business group's argument on adaptation and mitigation, Donahue said it reflected "a profoundly naive view that the harms of climate change will be restricted to relatively limited areas that can be 'shifted' away from."

David Doniger, an attorney at the Natural Resources Defense Council, was even more critical of the briefs.

"These are embarrassingly weak petitions, in keeping with these cases' role from the start as window dressing for a political argument," he said.

Click here to read the U.S. Chamber's brief.

Click here to read NAM's brief.