US court rejects requests to rehear case for EPA GHG rules
Washington (Platts)--20Dec2012/401 pm EST/2101 GMT
A divided federal court Thursday rejected industry petitions to rehear a
unanimous decision allowing the US Environmental Protection Agency to regulate
greenhouse gases emitted from the energy sector and vehicles, but two
distinct dissenting opinions may stir plaintiffs to seek review by the US
The dozens of plaintiffs in the case, Coalition for Responsible
Regulation v. EPA (No.09-1322), have 90 days to petition the Supreme Court to
consider their case against EPA activities to regulate industry greenhouse
gas emissions under the Clean Air Act.
National Association of Manufacturers President and CEO Jay Timmons said
his organization is "carefully considering" seeking Supreme Court review.
"While it is unfortunate that the Court denied our rehearing petition of
our challenge to these costly EPA regulations, we welcome the fact that two
judges wrote careful and well-reasoned dissenting opinions that supported our
arguments," Timmons said in a statement. "These rare dissents send a clear
signal that significant legal issues remain to be addressed."
Eric Groten, an attorney with Vinson & Elkins who represented the
coalition, said he expects petitions for Supreme Court review will be filed.
"The dissents from denial set up the issues beautifully," he said.
The order denying a rehearing of the case by the full US Court of Appeals
for the District of Columbia Circuit was accompanied by a statement from
three judges in the majority in which they concluded that their decision was
grounded in the landmark 2007 US Supreme Court ruling that EPA had the
authority to control carbon dioxide under the Clean Air Act.
"To be sure, the stakes here are high. The underlying policy questions
and the outcome of this case are undoubtedly matters of exceptional
importance," DC Circuit Court Chief Judge David Sentelle and judges Judith
Rogers and David Tatel said in their opinion dismissing the petitions.
"The legal issues presented, however, are straightforward, requiring no
more than the application of clear statutes and binding Supreme Court
precedent. There is no cause for en banc review."
Lengthy dissenting statements were filed by judges Janice Rogers Brown
and Brett Kavanaugh.
Brown argued that the Supreme Court's Massachusetts v EPA opinion "does
not compel" GHG regulation beyond vehicle tailpipes to stationary sources,
such as power plants and refineries, under the Clean Air Act's "prevention of
significant deterioration" or PSD and Title V permitting programs.
"The cascading layers of absurdity that flow from that interpretive
exercise make clear that the plain language of the CAA compels no such
result," Brown wrote in a 23-page dissent.
Further, despite the agency's "endangerment finding" against GHGs, the
Clean Air Act was drafted to regulate pollutants that cause ill effects when
inhaled and not to address flooding or heat waves as a result of GHG
emissions, she said.
"Congress was of course free to circumvent this close cause-health
effect nexus by devising a separate provision for GHG regulation, much as it
did for stratospheric ozone, but it did no such thing," Brown said.
Kavanaugh zeroed in on EPA's "tailoring" of the law's PSD provisions so
as to apply carbon dioxide regulations to only the largest industry sources
"As a court, it is not our job to make the policy choices and set the
statutory boundaries, but it is emphatically our job to carefully but firmly
enforce the statutory boundaries. That bedrock separation of powers principle
accounts for my concern about this case," Kavanaugh said in his 20-page
dissent. "Here, as I see it, EPA went well beyond what Congress authorized
for the Prevention of Significant Deterioration statute."
Sentelle, who was appointed to the court by President Ronald Reagan, and
Rogers and Tatel made up the three-judge panel that heard the original case
earlier this year and on June 26 handed down a 3-0 opinion in favor of EPA.
The three judges ruled that EPA acted within its authority under the
Clean Air Act when it issued its 2009 scientific "endangerment" finding that
six greenhouse gases, such as carbon dioxide, threatened public health and
The panel also agreed that EPA's subsequent GHG emission standards for
new vehicles and light trucks were correct and that these regulations then
allowed the agency to go after stationary sources, such as power plants and
refineries, in accordance with the law.
The court further upheld EPA's "tailoring" rule to regulate only the
largest stationary sources for GHGs under the law's PSD program.
"EPA's interpretation of the governing CAA provisions is unambiguously
correct," the three-judge panel said in its opinion for the agency.
--Cathy Cash, firstname.lastname@example.org
--Edited by Jason Lindquist, email@example.com