Rationality wins US greenhouse gas case

Tom Bennion, a Wellington environment lawyer who has not flown since 2009, takes a look at the recent Environmental Protection Agency versus the “Coalition for Responsible Regulation” case in the USA.

Opponents of regulation of greenhouse gases in the US, including a number of states, have just received a spanking in the DC Court of Appeals, a level just below the Supreme Court. The court has thrown out a variety of challenges to EPA rules regulating greenhouse gases. I will briefly explain the ruling (pdf here) and then comment on prospects from here.

The background is that in 2007 the Bush era EPA argued that it could not regulate greenhouse gases as pollutants under the Clean Air Act. In Massachusetts v. EPA the Supreme Court determined that it could.

Subsequently, the Obama era EPA has made an “Endangerment Finding” that greenhouse gases may “reasonably be anticipated to endanger public health or welfare.” Then it issued a “Tailpipe Rule” setting emissions standards for cars and light trucks which would save around 960 million metric tons of CO2e emissions. It also issued “Timing and Tailoring Rules” requiring only the largest stationary sources such as new power stations to meet emissions standards, on the basis that regulating every small polluter would be overly onerous.

Various states (drought afflicted Texas and thawing Alaska among them) and industry groups attacked both the Endangerment Finding and the rules on the basis that the Endangerment Finding and Tailpipe rules were “arbitrary and capricious” exercises of discretion by the EPA resulting from factual and procedural errors, and a misreading of the Clean Air Act.

The three member appeal court threw out all of the challenges.

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