Yesterday, in Coalition for Responsible Regulation v. EPA, the D.C. Circuit Court of Appeals rejected all challenges to EPA’s GHG rules. The decision is a reminder that important cases, or those with big stakes, are not necessarily difficult cases. Anyone reviewing the decision will quickly see that, to the court, this was not a hard case. Indeed, the tone of the opinion has the feel of a teacher lecturing a student where the teacher has a sense that the student is being willfully obtuse.
The bottom line is that EPA not only had authority to issue the regulations; it had a legal duty to do so under the plain terms of the Clean Air Act and the Supreme Court’s decision in Massachusetts v. EPA. The decision focuses on the challenges to EPA’s Endangerment Finding and the Tailpipe Rule. However, as the Court noted repeatedly, most of the petitioners’ arguments were foreclosed by Massachusetts v. EPA, calling to mind the statement by Judge Sentelle (a Reagan appointee) during oral argument that
Sometimes in reading the petitioners’ briefs, I got the impression that Massachusetts had not been decided.
The Supreme Court ruled that GHGs are an air pollutant. It gave EPA almost no wiggle room in which it could avoid an endangerment finding. The plain language – a phrase used repeatedly in yesterday’s decision – of the CAA requires EPA to regulate “any air pollutant.” End of story.
I’m left with two conclusions. The first, regarding GHG regulation itself, is that, as noted in E&E Daily today, the ball is now squarely back in Congress’s court. Of course, now Congress knows for certain that the default is GHG will be regulated if Congress does not act. Like E&E Daily, I do not see any imminent “grand bargain” to create a market-based GHG regulatory system in return for preclusion of other EPA GHG regulation. However, at some point it will get put back on the table.
The second is that I wish this case had never been brought. I understand that the stakes were high, but there was always only going to be one outcome. Moreover, not only did the petitioners lose, but they got a decision with plenty of language destined to haunt the regulated community in future cases, such as:
EPA is not required to re-prove the existence of the atom every time it approaches a scientific question.
EPA need not provide rigorous step-by-step proof of cause and effect
[The CAA] requires a precautionary, forward-looking scientific judgment about the risks of a particular air pollutant, consistent with the CAA’s precautionary and preventive orientation.
The language regarding the “precautionary and preventive orientation” of the CAA is most troubling and appears more than once in the opinion. I’m sure that Cass Sunstein, who knows that the rules were valid, but who has been a frequent critic of the precautionary principle, must have cringed at that language.
We’re going to be living with this decision for a long time, and not just in getting PSD permits for GHG emissions.