US limits on greenhouse gas emissions are facing a challenge in the federal court from more than 100 industry groups and several US states, in the latest attempt to halt, delay or overturn the Environmental Protection Agency's rules. Nor is it likely to be the last attempt – the EPA is scheduled to release greenhouse gas regulations for new power plants this spring, and it is expected that those rules will draw similar legal challenges.
Three federal judges were hearing arguments on 28 and 29 February at the DC Court of Appeals from groups seeking to overturn the regulations and also convince the judges that the science used by the EPA is wrong. Their judgement is not expected to be handed down any time soon.
Challengers to the EPA climate programme range from governments of states and municipalities where employment and tax revenue depend on industries that emit greenhouse gases, to business lobby groups such as the US Chamber of Commerce. These groups argue that the 1970 Clean Air Act, the EPA's authorising Act, was never intended for regulating greenhouse gases.
The EPA's raft of recent clean air rules has divided the power industry between companies that have moved toward cleaner energy, including Exelon and NextEra, and those that generate most of their power from coal, including Southern Co and American Electric Power. Environmental groups and activists concerned about global warming support the EPA regulations because the US Congress has not enacted legislation to cap emissions.
The petitioners, who have combined a dozen separate but similar lawsuits under the name 'Coalition for Responsible Regulation', are targeting four EPA rules. The first is an objection in principle to the "endangerment finding" - the scientific finding made by the EPA in December 2009 that found that greenhouse gases endanger public health, authorising the agency, under a Supreme Court ruling of 2007, to regulate greenhouses gases using the Clean Air Act.
The others are more specific, namely the so-called "tailpipe rule" (May 2010) which set greenhouse gas emission and fuel economy standards for new light-duty vehicles, the "timing rule" (April 2010) that will require generators and industrial plants to apply for permits to cover greenhouse gas emissions once the rules for vehicles kick in, and the "tailoring rule" (June 2010) which set a timeline requiring those industrial and utility sources to apply for permits according to the scale of their emissions.
On Friday 24 February, the EPA proposed that only the largest polluters would be required to hold carbon permits. The move was aimed at reducing burdens on states and local government permitting agencies.
Although most experts expect the judges to support the EPA's "endangerment finding," the other proposed regulations may be more vulnerable under the legal spotlight.
David Doniger, policy director for the climate and air programme of the Natural Resources Defence Council, said opponents had little chance of challenging the stringent process used by the EPA to reach its endangerment decision, a "multi-layered pyramid of peer-reviewed scientific research and assessment."
Jeff Holmstead, a partner at law firm Bracewell & Guiliani which represents utilities and other energy industry clients, conceded that the challengers face an "uphill" battle with the endangerment finding but said the challengers may have a stronger case against some of the EPA's other greenhouse gas regulations. "In terms of where the EPA is most vulnerable, it is probably the tailoring rule," he said.
The EPA created the tailoring rule to reinterpret a section of the Clean Air Act that requires any facility whose emissions exceed 250 tons per year of any pollutant to apply for a permit from a state agency and show it is using the cleanest available technology. Unlike other pollutants, for which 250 tons of emissions would represent a large amount, carbon is emitted in much higher quantities, meaning even facilities such as schools or churches would be forced to apply for permitting.
Critics of the EPA have argued that the agency's attempt to "tailor" the Clean Air Act is illegal because it rewrites the existing law. "The tailoring rule is the weakest of the EPA's rules because it violates explicit language in the Clean Air Act," said Howard Feldman, director of regulatory and scientific affairs at the American Petroleum Institute, one of the petitioners in the present hearing. He said the EPA's altering of the Clean Air Act language proves that the law was never designed to regulate carbon emissions. "We think the EPA has clearly overstepped Congressional intent," he said.
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