NRDC's Doniger previews oral arguments on greenhouse gas rules

As the U.S. Court of Appeals for the District of Columbia begins to hear oral arguments this morning to review four of EPA's greenhouse gas rules, what impact will the court's action have on future regulations coming out of EPA? During today's OnPoint, David Doniger, policy director of the Climate and Clean Air Program at the Natural Resources Defense Council, discusses his expectations for the arguments and possible outcomes.


Monica Trauzzi: Hello and welcome to OnPoint. I'm Monica Trauzzi. Joining me today is David Doniger, policy director of the Climate and Clean Air Program at the Natural Resources Defense Council. David, good to have you back on the show.

David Doniger: Nice to be here.

Monica Trauzzi: David, the DC Circuit Court of Appeals is hearing arguments this week for two days to review four of EPA's greenhouse gas emissions rules. We're talking about timing, tailpipe, endangerment and tailoring. What's the potential for the court's decision on these rules? Could we see a complete halting of these rules?

David Doniger: I think that's extremely unlikely. I think EPA is on very solid ground and, full disclosure, NRDC is an intervener on EPA's side. But we worked through this with them and the arguments coming from the other side are really just adornment for the political case they're making in the Congress to try to repeal the underlying authority that EPA has. That's not been going anywhere beyond the house into the Congress and it's not likely to get anywhere in court arguments.

Monica Trauzzi: So, the reverse argument, could the court actually increase the breadth of greenhouse gas regulations under the Clean Air Act?

David Doniger: No, I think what you most likely get out of this is court opinions that approve of what EPA has done so far, that uphold the endangerment finding as a proper action taken on the science, under the Clean Air Act and under the Supreme Court's direction in the Massachusetts v. EPA case in 2007 and the vehicle standards are the same thing. The vehicle standards are supported by the entire automobile industry as well as by the environmental community. The permit requirements for big, new stationery sources, those are also very likely to be upheld, in my opinion. The principal problem that the challengers have is that the regulations help them rather than hurt them. They narrow the scope of the permit requirements and if the petitioners were successful, they would create -- they would wreak havoc because the permit requirements would apply to the millions of sources that the companies say they're concerned about.

Monica Trauzzi: This all happens in the shadow of an NSPS rule that is soon to be announced. What's the impact of these oral arguments on the outcome of some of the other rules that we may see coming out of EPA?

David Doniger: Well, the fundamental thing we've learned out of the past two years of combat over EPA action is that the public backs the EPA. The public buys the argument that EPA has the science credentials and the credibility to make decisions about pollution that is dangerous for our health and for our climate and they should be allowed to do that. You get about two thirds of the public who supports that proposition and rejects the counter argument that this is all about killing jobs and hurting the economy.

Monica Trauzzi: But could the court come down in a way that sort of modifies the rules a bit so that there aren't these big economic impacts?

David Doniger: Well, there aren't big economic impacts to begin with. First of all, the vehicle regulation is having actually big economic impacts to the good in that people who buy new cars under these clean air and fuel economy standards are going to save money the first month they drive that car out of the lot. The combined total of the payments on your car and the payments at the pump will go down. So this is a big plus for everybody who buys a new car. The factory permit requirements apply to just a few hundred of the very largest industrial facilities, mainly power plants, and they don't impose -- there's been no complaints that they are stopping projects or imposing big costs. There's a lot of puffing about what might happen, but if you look at what's gone forward in the year plus since the permitting started, no one can point to any stories that are troubling.

Monica Trauzzi: But these technologies are expensive to put in place and we're seeing plants shutting down.

David Doniger: Not because of carbon regulations. The carbon regulations -- the carbon requirements, so far, are to make these new facilities efficient, to think about the choice of fuels if you're starting from scratch. Nobody seems to want to build a new coal plant anyway. So there's been no -- no one can point to any project that's been stopped by the carbon regulations and that will be true in the future as well. The new source standards that we are hoping to see quite soon, I think you'll see the same situation, that there are no new coal plants in prospect. There will be an effort by opponents to say that those regulations are blocking plants, but those plants, they don't exist to begin with.

Monica Trauzzi: In the context of EPA regulation, where does this challenge stand in terms of significance?

David Doniger: Well, it's very important that EPA's actions, especially the endangerment determination, that it be upheld. The endangerment determination stands at the top of a pyramid of thousands of peer-reviewed scientific articles and probably about a dozen major assessments, compilations and assessments of those peer-reviewed articles. Themselves peer reviewed. And then the EPA work went through peer review and notice and comment. Thousands of comments came in. Every single one of them got answered. It's very important that this transparent, completely justified, well supported government action, that it go forward and I expect that the court will have no trouble approving it.

Monica Trauzzi: In a recent blog post you refer to these oral arguments as a shootout. How much drama are you expecting to actually happen here?

David Doniger: Well, I think when people come down and hear the argument they may or may not find it to be exciting drama. There's just a huge number of challengers. Some of them are kind of wild West characters, so I thought the shootout at the OK Corral was a good metaphor. I do think they're shooting with blanks and EPA is going to come out on top in this.

Monica Trauzzi: Could this go all the way to the Supreme Court?

David Doniger: I think it's quite unlikely that the Supreme Court would take cases that come out of this. The Supreme Court has already held in Massachusetts what the law says and the framework that EPA is supposed to use, a science-based approach. It's already ruled that most of the collateral issues that the challengers are still trying to raise, that they're out of bounds. And the Supreme Court doesn't really like to get into the detailed implementation of big issues that it thinks it's already settled. The Supreme Court has actually ruled on this twice. Last summer they ruled again that this is EPA's job under the Clean Air Act in the Connecticut v. American Electric Power case. So, I feel very confident that the DC Circuit is going to uphold what EPA has done and keep moving forward.

Monica Trauzzi: All right, we'll end it there and we'll be watching this week.

David Doniger: Thank you very much.

Monica Trauzzi: Thank you and thanks for watching. We'll see you back here tomorrow.

[End of Audio]



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