CLIMATE:

States take sides in 'endangerment' legal brawl

States took their places in the trenches this week as they joined the court fight either for or against U.S. EPA's "endangerment" finding for greenhouse gases.

Sixteen states asked a federal appeals court this week to become parties in what has grown to be a major legal fight pitting EPA, states and environmental groups against industries, global warming skeptics and other state challengers.

Petitioners in the case are asking the U.S. Circuit Court of Appeals for the District of Columbia to review EPA's determination that greenhouse gases endanger human health and welfare. That finding came in response to a 2007 U.S. Supreme Court ruling that the agency has the authority to regulate the heat-trapping emissions using the Clean Air Act (Greenwire, Feb. 17).

The court consolidated the 16 petitions challenging EPA's endangerment finding into one lawsuit, Coalition for Responsible Regulation Inc., et al., v. EPA. Yesterday marked the deadline for parties to file motions to intervene in the case.

The Pennsylvania Department of Environmental Protection and the state of Minnesota are seeking to intervene on behalf of the agency. In a motion filed Wednesday, the states said that they each have a substantial interest in the outcome of the court's action. The states argued that "a negative outcome here in terms of the validity of the final rule will delay or prevent EPA from taking steps to reduce the direct risk to Pennsylvania and Minnesota, thereby directly harming the public interests of both states."

Fourteen other states asked the court this week to intervene in opposition to EPA. Alaska and Michigan filed separate motions to intervene, and a third was filed by Nebraska, Florida, Hawaii, Indiana, Kentucky, Louisiana, Gov. Haley Barbour (R) for the state of Mississippi, North Dakota, Oklahoma, South Carolina, South Dakota and Utah.

Alaska Attorney General Daniel Sullivan (R) argued that his state has "important interests that will be impaired by the endangerment finding," including burdensome permitting requirements that would result from forthcoming stationary source regulations.

Michigan Attorney General Michael Cox (R) also argued that the states' "ability to administer its air permitting program will be substantially impaired by the disposition of the challenge to EPA's endangerment finding."

Many other states have already staked out their sides in the legal battle over EPA's finding.

Alabama, Virginia and Texas each filed separate lawsuits last month asking the court to review the agency's determination.

Sixteen other states and New York City asked to intervene on behalf of EPA in January. Those states are Arizona, California, Connecticut, Delaware, Illinois, Iowa, Maine, Maryland, Massachusetts, New Hampshire, New Mexico, New York, Oregon, Rhode Island, Vermont and Washington. The motion argues that the court's actions will affect the public health and welfare of their residents, and will also affect a host of global warming impacts that their states suffer from and will continue to suffer from in the future (Greenwire, Jan. 25).

EPA's challengers are hopeful that the appeals court will hear their arguments, but some air attorneys are confident that the court will dismiss the case because the finding itself does not impose any immediate regulations (Greenwire, Feb. 15). Rather, those experts say, the legal battle over EPA's climate policies could take place after the agency finalizes its first greenhouse gas rules due out this month.

EPA spokeswoman Adora Andy said, "EPA is confident the finding will withstand legal challenge, allowing the agency to protect the American people from the significant dangers posed by greenhouse gases and carbon pollution."

Other groups that filed motions to intervene on behalf of the petitioners this week were the Portland Cement Association and a coalition of 21 industry associations and chambers of commerce.

The Southern Environmental Law Center on behalf of the environmental group Wetlands Watch filed a motion to intervene on behalf of EPA. The Union of Concerned Scientists filed a motion to participate as amicus curiae, or "friend of the court," in order to provide information about climate change science.

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