Obama admin publishes auto rule, setting timeline for lawsuits

Lawsuits attacking U.S. EPA's first greenhouse gas standard are expected to start rolling in after the Obama administration's suite of new automobile standards was published last Friday in the Federal Register.

The publication of the joint EPA and Transportation Department rule imposing the first-ever federal greenhouse gas emissions standards on cars and trucks and raising the fuel economy of the nation's passenger fleet triggers a 60-day deadline for opponents to challenge the rules in court, according to legal experts.

The rules take effect on July 6, which means critics have until then to challenge EPA's portion of the rule in the U.S. Circuit Court of Appeals for the District of Columbia.

The rules -- which represent a White House-brokered compromise between carmakers and states that had pushed to create their own auto emissions standards -- will push the nation's corporate average fuel economy, or CAFE, to 35.5 miles per gallon by 2016, and will impose an average carbon dioxide limit of 250 grams per mile per vehicle in 2016 (Greenwire, March 1).

But many critics have urged the administration to advance the DOT portion of the rule without moving forward on the EPA standard. One of their major concerns: EPA's carbon dioxide limit will officially make greenhouse gases "subject to regulation" under the Clean Air Act, which will ultimately trigger Clean Air Act permitting requirements for industrial sources like power plants, refineries and other large facilities.


Experts predict that legal challenges will be launched against EPA's tailpipe standard, but not DOT's CAFE standards.

"I don't know that there is any interest in challenging the CAFE standards, but there will certainly be some challenges to the Clean Air Act rule," said Jeff Holmstead, an industry attorney and former EPA air chief during the George W. Bush administration.

EPA's rulemaking came after the U.S. Supreme Court ordered the agency in 2007 to determine whether greenhouse gases endanger public health and welfare.

A host of states, lawmakers, industry representatives and other groups are already suing EPA over its finding that greenhouse gases threaten public health and welfare, which sets the stage for the tailpipe standard. Clean Air Act attorneys expect many of those same opponents, in addition to some new challengers, to sue EPA over the auto rule.

Automobile dealers are widely cited as potential challengers to the vehicle standards. The National Automobile Dealers Association (NADA) has offered its support to a Republican-led effort in the Senate to hobble EPA's ability to regulate greenhouse gases (E&ENews PM, March 2).

"I would assume it's the same crowd that have -- the same group of flies that have gathered around the prior rules, endangerment and the rule about reconsideration of the start of the PSD program, the so-called 'Johnson Memo' reconsideration," said David Doniger, policy director of the Natural Resources Defense Council's Climate Center.

"One thing I'm quite confident of," Doniger added, "it won't be anybody from the auto industry, and it won't be anybody from the environmental community."

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