CLIMATE:

Lawsuits roll in as EPA 'endangerment' deadline looms

Critics of U.S. EPA's climate regulations are lining up to launch legal battles against the agency's "endangerment" finding amid a looming deadline for court challenges.

The U.S. Chamber of Commerce on Friday petitioned a federal appeals court to reconsider EPA's determination that greenhouse gases threaten public health and welfare, a finding that paves the way for broad regulations of the heat-trapping emissions.

The challenge from the industry trade group is the latest of a series of legal attacks against the finding, and observers say more could appear before tomorrow's deadline for critics to file petitions in the U.S. Circuit Court of Appeals for the District of Columbia.

"The U.S. Chamber strongly supports efforts to reduce greenhouse gas emissions in the atmosphere, but we believe there's a right way and a wrong way to achieve that goal," the group said in a statement.

EPA's endangerment finding is the wrong way, the chamber said. "Because of the huge potential impact on jobs and local economies, this is an issue that requires careful analysis of all available data and options. Unfortunately, the agency failed to do that and instead overreached."

The chamber said its petition was based on lapses in EPA's process in making the decision to regulate greenhouse gases under the Clean Air Act, and not on scientific issues related to climate change or the finding.

Last week, Atlanta-based Southeastern Legal Foundation Inc. filed a separate petition with the appeals court. The limited-government advocacy group, which filed the petition on behalf of 13 House Republicans and other business associations, plans to challenge the integrity of the scientific data used to underpin EPA's finding (E&E Daily, Feb. 11).

And last December, groups including the Coalition for Responsible Regulation Inc., coal and mining companies Massey Energy Co. and Alpha Natural Resources Inc., as well as the National Beef Cattlemen's Association, also petitioned the court to review the finding. Those groups are also planning to challenge the science behind the determination. A coalition of 16 states and New York City has asked to intervene in that case (Greenwire, Jan. 25).

Roger Martella, former EPA general counsel during the George W. Bush administration, said he expects the groups to pursue a variety of strategies to attack the finding.

"Many of the petitioner groups take the position that global climate change is a serious issue that warrants action and will want to avoid turning the endangerment litigation into a debate on climate change science itself," Martella said.

"Instead, these groups are more likely to focus on the legal and record basis for EPA's endangerment determination -- in other words, whether EPA is asking the right questions, looking at the right information, and meeting its burden in finding endangerment under the standards set forth in the Clean Air Act."

EPA expressed confidence today that the endangerment finding will withstand legal challenge. "The U.S. Supreme Court ordered EPA three years ago to determine whether unchecked greenhouse-gas emissions pose a danger to the American public," EPA said in a statement. "The Agency made an affirmative finding following an exhaustive review of the peer-reviewed science and thousands of public comments submitted in an open and transparent process."

Debate over standing

Experts say the appeals court is likely to lump the industry petitions together within the next couple of weeks. Some observers expect the court to promptly dismiss the case, while others are confident that the panel will ultimately hear oral arguments.

Petitioners will likely be required to file briefs within several months, said Jeff Holmstead, an industry attorney and former EPA air chief during the George W. Bush administration. Following that, the administration normally has 60 days to respond, and challengers have another 30 days to submit reply briefs.

"We are certainly going to make every effort to put this before a panel of the U.S. Court of Appeals," said Shannon Goessling, executive director and chief legal counsel at the Southeastern Legal Foundation.

"I think it's a very good chance" that the court will hear the case, Goessling added. "This is a precursor to an abundant amount of regulation. Between the reporting rule and the tailoring rule and the effect on stationary sources and vehicles that will be coming out in 2012, this will have broad, sweeping effects that will cost upward of a trillion dollars."

But David Bookbinder, chief climate counsel at the Sierra Club, said he expects the court to dismiss the case after the Justice Department argues that the petitioners lack standing. "DOJ will make that motion and the court will grant it," Bookbinder said.

Because the endangerment finding does not impose any immediate regulations, Bookbinder said, no injury was done to the petitioners by issuing the determination. "If there's an agency action that doesn't involve actually doing anything to you, there's no standing, there's no injury," he said.

Endangerment battle could play out over vehicle rules

Holmstead agreed that the court could determine that the challengers do not have standing to challenge the endangerment finding on its own. But with EPA expected to soon begin regulating tailpipe emissions of greenhouse gases, Holmstead and others said the battle over the endangerment finding could take place in the context of that rule.

"I think there is a good likelihood that ultimately the endangerment determination petitions become consolidated with any challenges to the motor vehicle rule itself, which likely would moot any standing questions," Martella said.

Observers expect automobile dealers to lead the challenge against the vehicle rule, because automakers were involved in negotiating the administration's proposal and have been largely supportive of the standard.

Bookbinder said opponents of the vehicle rule will launch two attacks: They will argue that the science behind the endangerment finding is flawed and that EPA failed to analyze the effects of regulations on small businesses as required under the Regulatory Flexibility Act.

Both of those arguments will fail, Bookbinder said. On the claim that the science does not justify the endangerment finding, he said, "I could argue that with hand puppets and win. It's a factual determination that EPA gets to make."

Courts almost always defer to EPA and other science agencies because they are not set up to arbitrate scientific disputes, Holmstead said. "I think the challengers will have an uphill battle on that," he said.

However, Holmstead added, auto dealers will likely have some additional arguments, and he expects the court will grant other petitioners standing in the challenge over the vehicle rule.

As for the argument that EPA failed to analyze the effects to small business, Bookbinder said that federal courts have never invalidated an agency action on the basis of the act, which requires EPA to convene a panel to assess the potential impact of the rules on small businesses.

GOP lawmakers and an independent advocacy office within the Small Business Administration have accused EPA of failing to fully analyze the pending climate rules' effects on small businesses (E&E Daily, Jan. 15).

Click here to read the chamber's petition.

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