Rock Products

JAN 2013

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Climate Change Litigation Federal Court Opens Door to EPA Regulation of Greenhouse Gases. Will it Wind Up in the Supreme Court? By Scott D. Deatherage Federal courts have issued opinions that have assisted certain industries and business groups that are opposed to the courts stepping in to address climate change and greenhouse gas emissions. These cases have taken quite a bit of steam out of the individ‐ uals or entities that want to address climate change through the courts. However, another federal court deci‐ sion opened the door to the U.S. Envi‐ ronmental Protection Agency's (EPA) regulation of greenhouse gases under the federal Clean Air Act (CAA). This case has in general freed the EPA to issue regulation under what is known as the Prevention of Significant Deteri‐ oration program of the CAA. The EPA's ability to regulate green‐ house gases was addressed by the U.S. Supreme Court in 2007, when the court considered a challenge to the EPA's decision during the Bush ad‐ ministration not to grant a private pe‐ tition to regulate greenhouse gases emitted from automobiles. The deci‐ sion in that case opened the door and made it hard for the EPA not to regu‐ late greenhouse gases under the CAA. Once the Obama administration came into power, the EPA moved forward with decisions and regulations to limit greenhouse gas emissions from auto‐ mobiles, largely through increased fuel efficiency standards negotiated with the automobile manufacturer. This decision led to regulation of greenhouse gas emissions from larger industrial emitters, including coal‐ fired and natural‐gas fired power plants, refineries, among others. Of course, litigation followed challenging those regulations. 40 ROCKproducts • JANUARY 2013 Largest Emitters The EPA's regulations focused on only the largest emitters, more than 75,000 or 100,000 tons of greenhouse gases, depending on timing and other criteria – even though a reading of the act would suggest any emitter over 250 tpy would be regulated. This limitation resulted in a nickname of the regula‐ tion as the "Tailoring Rule," because it was "tailored" to the largest emitters. The EPA said it would look at smaller emitters over time and determine whether to address those sources. The litigation challenging the EPA rules was brought by various industry and non‐governmental groups, states and companies. The case, Coalition for Responsible Regulation v. EPA, was de‐ cided by the D.C. Circuit Court of Ap‐ peals and a decision was handed down in June 2012. The decision up‐ held the EPA rules unanimously, by both Democratic and Republican ap‐ pointed judges. The court decided the case largely on three grounds: n The first relates to the EPA's decision that the emission of green‐ house gases causes or contributes to air pollution that may be reason‐ ably anticipated to endanger public health or welfare of human health – known as the "Endangerment Find‐ ing." This decision was made with respect to mobile sources, such as cars, trucks or trains. The court concluded that it would defer to the EPA's scientific decision. The court stated that the EPA "is not required to re‐prove the existence of the atom every time it approaches a scientific question." Scott D. Deatherage is a partner with Patton Boggs LLP. He can be reached at 214-7581539 or at sdeatherage@pattonboggs.com. The decision was not surprising based on the historical Supreme Court precedent that directs courts to defer to administrative agencies on scien‐ tific and technical issues. Whatever one's view of climate change and its occurrence or cause, the challenge to climate science itself was not a likely winner based on the conclusions of the scientific academies in the U.S. and other developed and major develop‐ ing countries and the United Nations' Intergovernmental Panel on Climate Change. Future challenges along these lines are not likely to succeed. n The second ground was that the EPA then moved forward with reg‐ ulating mobile sources. The court upheld the EPA's decision because it concluded that the EPA did not have any discretion to not issue such rules once the agency made the Endangerment Finding. This is why the challengers first went after the basic scientific conclusions un‐ derpinning the EPA greenhouse gas mobile rules. Again, this decision was not surprising. n The third ground was more surprising. The challengers had as‐ www.rockproducts.com

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