EPA's relatively mild 'tailoring act' that went into effect Jan. 2, is on much shakier ground than its CO2 endangerment finding
By Elizabeth McGowan, SolveClimate News
WASHINGTON—Texas and 14 other states clearly want to deep-six the endangerment finding.
But legal experts who keep an eagle eye on Clean Air Act issues agree that attempts to bury it won't succeed. The Environmental Protection Agency's December 2009 finding that heat-trapping gases pose a danger to human health and welfare is likely impenetrable to court challenges because agency scientists did their homework so thoroughly, they say.
"All of us watching this would be absolutely stunned with an appellate court overturning the endangerment finding," environmental law professor Pat Parenteau told SolveClimate News in an interview. "Based on everything I know about this case, it's a 90 percent winner for the government. You can never say 100 percent because weird things can happen in litigation."
Parenteau, who specializes in EPA and Congress at the Vermont Law School in South Royalton, is referring to the opening legal brief Texas filed May 24 with the U.S. Court of Appeals for the D.C. Circuit. It's the appellate court designated for handling direct challenges to EPA's authority.
The states argue in their 41-page document that the endangerment finding should be overturned because it is not only arbitrary and capricious but also a violation of the Clean Air Act. They claim EPA refused to define or measure endangerment and refused to consider adaptation and mitigation as solutions to the effects of climate change.
Other states joining the suit are Alabama, Florida, Indiana, Kentucky, Louisiana, Michigan, Mississippi, Nebraska, North Dakota, Oklahoma, South Carolina, South Dakota, Utah and Virginia.
Why Courts Will Back EPA
Columbia University environmental law professor Michael Gerrard echoes Parenteau's prediction about Texas's court challenge being a steep uphill climb where odds favor EPA's irrefutable proof.
"Overturning the endangerment finding would mean finding that EPA did not have a solid basis" for its decision, said Gerrard, director of the university's Center for Climate Change Law, in an interview. "EPA has heaped up enormous volumes of evidence on one side. The evidence on the other side is exceedingly thin.
"EPA is the agency that has the scientists with the expertise," he continued. Before issuing the endangerment finding they "looked at it, relooked at it and re-relooked at it. They seriously examined critiques and still ended up in the same place."
Texas's lawsuit challenge covers a very traditional administrative law question, Parenteau said, adding that it's a prime example where deference to an agency such as EPA is "at its absolute peak" because the courts don't sit as the final arbiters of science.
As long as EPA had a reasonable basis to conclude that carbon dioxide and other greenhouse gases may reasonably be anticipated to threaten public health or the environment, he explained, the agency is authorized to make an endangerment finding.
"EPA didn't leave any stone unturned," Parenteau said, adding that the agency's massive documentation weighed in at 900 some odd pages of global warming research. "There isn't any science they missed. They acknowledged everything."
Lone Star State Politics at Play
Both Parenteau and Gerrard are on the same page with environmental watchdogs who interpret the challenge to EPA's endangerment finding as having more of a political bent than a legal one.
"Fundamentally, this is [Texas Gov. Rick] Perry and his pals pandering to the polluters," Tom "Smitty" Smith, director of Public Citizen's Texas office, told Solve Climate News in an interview from Austin. "They're picking their pockets for campaign contributions. Unfortunately, the rest of the world loses in this dash for cash."
Smith is referring to speculation that Perry is considering a presidential campaign on the Republican ticket and that Texas Attorney General Greg Abbott, who is heading up the lawsuit, is considering a run for Lone Star State governor.
One of the planks of Perry's platform conforms with a popular GOP theme that environmental regulations are out of control and strangling the nation’s business community, Smith said.
Smith Counters Legal Experts
Unlike the legal experts, Smith said he thinks the endangerment finding is indeed endangered.
He views Abbott's current challenge as just the first shot in an attempt to force disagreement in the appellate courts, which would force the Supreme Court to revisit the issue of whether greenhouse gas emissions are indeed pollutants.
"We call it the spaghetti theory," said Smith, who has been in charge of his Texas office since 1985. "If you throw it at the wall and it sticks, you'll end up having confusion in the courts and the Supreme Court will have to resolve it. It's death by 1,000 cuts, or in this case, death by 1,000 courts."
By tying up issues in the courts, he said, polluters have succeeded for decades at keeping regulations involving mercury, sulfur dioxide, nitrogen oxide, particulates and other harmful emissions at bay.
Smith points out that the Supreme Court's landmark Massachusetts v. EPA ruling was a welcome surprise to most in the environmental community. That 5-4 ruling in 2007 gave EPA authority to regulate carbon dioxide as a pollutant under the Clean Air Act, thus opening the door for the endangerment finding. EPA Administrator Lisa Jackson, appointed by President Obama, issued the finding after her predecessor, President George W. Bush appointee Stephen Johnson, was stymied in his efforts to do so.
But he fears this newest version of the Supreme Court would severely clip the wings the justices granted to EPA scientists in Massachusetts v. EPA.
“This Supreme Court has become even more political," Smith said. "And the other side is giving them the opportunity to revisit this."
Both Parenteau and Gerrard pointed out that even if the Supreme Court did take another look at the endangerment finding — and chances of this are very remote — the most the court would do is point out a flaw with the endangerment finding that EPA could remedy. Justices would not be overturning Massachusetts v. EPA, they emphasized.
Potential 'Colossal Impact'
Of course, the endangerment finding isn't the only EPA ruling in litigation. Texas and other states are using the courts to challenge a plethora of Clean Air Act regulations.
Parenteau and Gerrard agree that some of those, such as EPA's relatively mild tailoring act that went into effect Jan. 2, are on much shakier ground than the endangerment finding. The tailoring act requires large emitters already responsible for procuring New Source Review permits for other pollutants to include greenhouse gases in their permits.
"The challenge to the tailoring rule is the strongest because there is an argument that it is inconsistent with the Clean Air Act," Gerrard said. "I think that lawsuit has better odds."
Parenteau put EPA's odds of prevailing on the tailoring rule as 50-50.
"A judge could tell EPA to go back to the statute and revisit the tailoring act because it's a well-intentioned effort but the Clean Air Act doesn't give [the agency] that flexibility," the Vermont professor said. "EPA is asserting latitude with the tailoring rule and the agency might have to go back to Congress to get its blessing."
Both Parenteau and Gerrard understand Smith's concern about the possibility of an appellate court overturning the endangerment finding. As Gerrard noted, it would have a "colossal impact” on all of EPA's effort to rein in greenhouse gases.
Indeed, Parenteau said, if Texas and the other states succeeded in challenging the endangerment finding, "they would bring down the whole house of cards because all of EPA's other rules are based on this finding."
They are all staying tuned into the drama as the cases churn through the courts.
"Some of the smartest lawyers in the country wouldn’t be wasting all of this time filing lawsuits if they didn’t want to force the Supreme Court to re-examine this," Smith said. "Our hope is that the Supreme Court won’t bow to the pressure and will uphold the previous ruling."See Also: Climate Study Congress Requested Falls on Deaf Ears in the Capitol State Clean Air Agencies Lose $112 Million in EPA Budget-Cutting With Anti-EPA Votes on Hold, Nervous Dems and Green Groups Make Appeals GOP Duo Want a Law to Count Costs of EPA's Clean Air Rules In Its Crusade Against EPA Climate Rules, Has the GOP Gone Too Far? EPA's Greenhouse Gas Reporting Program Faces Fire from Both Sides EPA Chief Takes the Hot Seat As Fight to Block Climate Rules Intensifies