Captain Zero Loses Again: Greenhouse Gases

WC’s readers know that WC has low expectations for Governor Parnell. But you’d think he could find a case to win, somewhere. But it didn’t happen in the District of Columbia Circuit on June 26, 2012, when the most prestigious of the federal circuits slapped Captain Zero down. Again.

In Coalition for Responsible Regulation et al. v. Environmental Protection Agency (the case caption alone runs to more than fifteen pages), the court upheld the EPA’s modest efforts to phase in regulation of greenhouse gases.

The backstory is pretty interesting. Under the Bush administration, the EPA resisted mightily efforts to make it regulate greenhouse gases as pollutants under the Clean Air Act. The EPA had to be dragged all the way to the U.S. Supreme Court where, in Massachusetts v. EPA in 2007 the Roberts court held that the EPA had to regulate greenhouse gases. It was a significant loss for the Bush administration. And likely a really bitter pill for Senator Imhofe (R., OK and Crazies), who denies climate change.

So, forced kicking and screaming to regulate greenhouse gases, the EPA undertook some very slight regulation of the more obvious sources: tailpipes on automobiles and trucks, and major point sources (more than 250 tons of greenhouse gases per year). The industries squealed like stuck pigs. The states where the industries are located and too many industry groups to count rushed to court.

Including, WC is sorry to say, the State of Alaska. In fact, Alaska is the first-named plaintiff in the first of the consolidated cases. You might think that the state where global warming is happening in real time might hesitate to rush to challenge efforts to mitigate the cause. But you’d be wrong.

The Court of Appeals for the D.C. Circuit, in its per curiam opinion, upheld the EPA’s actions.

Following the Supreme Court’s decision in Massachusetts v. EPA, 549 U.S. 497 (2007)—which clarified that greenhouse gases are an “air pollutant” subject to regulation under the Clean Air Act (CAA)—the Environmental Protection Agency promulgated a series of greenhouse gas-related rules. First, EPA issued an Endangerment Finding, in which it determined that greenhouse gases may “reasonably be anticipated to endanger public health or welfare.” See 42 U.S.C. § 7521(a)(1). Next, it issued the Tailpipe Rule, which set emission standards for cars and light trucks. Finally, EPA determined that the CAA requires major stationary sources of greenhouse gases to obtain construction and operating permits. But because immediate regulation of all such sources would result in overwhelming permitting burdens on permitting authorities and sources, EPA issued the Timing and Tailoring Rules, in which it determined that only the largest stationary sources would initially be subject to permitting requirements.

Petitioners, various states and industry groups, challenge all these rules, arguing that they are based on improper constructions of the CAA and are otherwise arbitrary and capricious. But for the reasons set forth below, we conclude: 1) the Endangerment Finding and Tailpipe Rule are neither arbitrary nor capricious; 2) EPA’s interpretation of the governing CAA provisions is unambiguously correct; and 3) no petitioner has standing to challenge the Timing and Tailoring Rules. We thus dismiss for lack of jurisdiction all petitions for review of the Timing and Tailoring Rules, and deny the remainder of the petitions.

Across the board. Another dead flat loss for Captain Zero. And a very small success for the environment.

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