Lawyers descend en masse for arguments on greenhouse gas rules

If the importance and complexity of a court case can be established based on the number of lawyers at the lectern, then the battle over the Obama administration greenhouse gas regulations is of epic proportions.

When the three interlinked cases are argued over two days at the U.S. Court of Appeals for the District of Columbia Circuit this week, no fewer than 18 different attorneys will advocate for their clients before the three-judge panel.

By contrast, a typical appeals court argument over a U.S. EPA regulation usually takes less than an hour and tends to involve no more than a handful of attorneys.

In addition to the 18 attorneys who will actually speak -- representing EPA, industry groups, states and environmental organizations -- there are dozens behind the scenes who have been working on the litigation.


"This is one of the most complex and consequential sets of cases in the history of environmental law," said Michael Gerrard, director of the Center for Climate Change Law at Columbia Law School. "It involves not just one project, industry or regulation, but a whole structure of interlocking regulations that affect broad swaths of the economy."

There are four principal rules under the legal microscope before the court, although two, the "timing" and "tailoring" rules, have been consolidated into one case.

Arguments over the "endangerment" rule, which focuses on EPA's initial decision in which it held that greenhouse gases are harmful, and the "tailpipe" rule, which adopts new standards for car and light-truck emissions, will be argued tomorrow.

The arguments on the consolidated challenges to the timing and tailoring rule will be heard Wednesday, along with a separate challenge to EPA's existing regulations concerning the long-standing regulation of stationary sources, which petitioners say should not be applied to greenhouse gases or various other pollutants.

The timing rule required that new controls of greenhouse gas emissions from stationary sources would be triggered on Jan. 2, 2011, the day that new motor vehicle standards went into effect.

The tailoring rule interprets the Clean Air Act in such a way that only major polluters are required to obtain permits for greenhouse gas emissions. That rule is considered the most vulnerable to legal attack because EPA was forced to effectively rewrite the Clean Air Act in order to prevent the regulations from applying to nonindustrial sources like schools and apartment buildings.

Herding cats

It is an old joke that getting lawyers to agree on anything is like herding cats, but that is exactly what those involved had to do in order to figure out who was going to argue what over the two days.

This was likely more a problem for the various industry groups and several states challenging the rules, simply because there were so many of them sitting around the table, ranging from the U.S. Chamber of Commerce and the National Association of Manufacturers to the American Petroleum Institute and the states of Texas and Virginia.

Asked how they coordinated, one lawyer involved, who declined to be named, said: "A lot of meetings and conversations boiling down what issues needed to be argued and then trying to decide who would get what."

Ultimately, "it wound up being really one lawyer from each of the main parties interested in each of the issues," he added.

Discussions were similar for the environmental groups and the states that intervened in defense of the rule, according to Sean Donahue, who will be arguing Wednesday on behalf of the groups.

"We did work closely in deciding who was going to argue," he said.

One question the various lawyers agreed upon was that an attorney from Massachusetts should argue in defense of the endangerment finding. That's because Massachusetts was a key player in the litigation that led to the 2007 Supreme Court ruling in Massachusetts v. EPA, in which the justices ruled for the first time that greenhouse gases were a pollutant and could therefore be regulated under the Clean Air Act. The decision led directly to the endangerment finding.

In a similar vein, it made sense for a lawyer representing California -- which has been particularly active in regulating vehicle emissions -- to argue over the tailpipe rule, Donahue said.

Donahue's side also had discussions with the Obama administration's lawyers about how they could be of assistance, he added.

It was up to the administration to cede some of its argument time in order for the environmental groups and states in favor of the rules to have any say at argument.

"We talked to them, and they agreed to the argument time," Donahue said.

Ceremonial courtroom

As previously reported in Greenwire, the three judges presiding over the litigation have a history when it comes to both environmental cases in general and, more specifically, greenhouse gases.

They are Chief Judge David Sentelle, a conservative appointed by President Reagan, and two Clinton appointees: Judges Judith Rogers and David Tatel.

Sentelle and Tatel were both on the panel that considered Massachusetts v. EPA before the case ended up at the Supreme Court (Greenwire, Nov. 3, 2011).

The court ruled 2-1 against states that were seeking EPA action on global warming. Sentelle was in the majority, while Tatel was the dissenter.

When the massed ranks of attorneys congregate at the U.S. courthouse on Constitution Avenue in Washington tomorrow morning, the three judges will hear the arguments in a ceremonial courtroom that is much bigger than the more cramped space they normally use. Even that isn't thought to be big enough to accommodate all of those who want to tune in.

Donahue said that based on the lawyers lined up on both sides, the two-day argument will be worth watching.

"They are experienced, talented, able attorneys," he said.

As Daniel Farber, an environmental law professor at the University of California, Berkeley, School of Law, noted, while it may be unusual for so many lawyers to be arguing, there's an obvious reason why.

"That seems like a lot of lawyers to me," he said. "But of course the challengers are raising a lot of issues."

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