On Eve of New Climate Regs, A Primer, Part II: Lawsuits
A number of suits challenge the nascent Environmental Protection Agency (EPA) effort to reduce greenhouse emissions, but the agency has actually been prodded into action by lawyers from states and environmental groups from the other side. The current effort to regulate carbon dioxide, in fact, stemmed from a 1999 suit originally filed by liberal groups against EPA, which eventually led to a Supreme Court decision that EPA had to act since greenhouse gases fell under the purview of the Clean Air Act. Critics of the EPA's efforts, including the powerful future House of Representatives Energy and Commerce Committee Chair Fred Upton (R-MI), say EPA is engaging in a "power grab." But the president says they're just following the law: "The EPA is under a court order that says greenhouse gases are a pollutant that fall under their jurisdiction," Barack Obama said after he declared legislation on cap and trade dead in the water in the wake of the elections.
Now Obama has turned from pushing cap and trade to "cap no trade" as one critic called it. And the lawsuits are piling up. Most would seek to stop the federal effort, though some put new pressure on EPA or the polluters themselves to stem emissions.
First there are the suits to shut down the EPA's budding regime.
EPA's efforts rest on three pillars. Last year the agency finalized an official "endangerment finding" declaring that greenhouse gasses endanger public health or welfare. Then they set up rules to regulate those emissions from cars. Following that they proposed rules to define which sizes of existing or new industrial facilities required regulation, and when.
All three elements are at issue in one mega-case being litigated in the U.S. Court of Appeals for the District of Columbia Circuit. That case, called Coalition for Responsible Regulation Inc. et al. v. EPA, combines 16 lawsuits which have all been appealed from federal district courts. Two weeks ago, EPA fended off an effort by the litigants to receive a legal "injunction" which would have temporarily blocked EPA from moving forward on the whole program. Sixteen states have weighed in on the side of EPA,, 14 oppose it; enviros are mostly allied with the Obama Administration while a wide variety of pro-business or right-leaning groups side with industry. Briefs on the case, which the judges will hear in parts corresponding to the three pillars, are due some time this spring.