Earlier this month, the D.C. Circuit Court of Appeals announced the panel of judges that will determine the legality of the Environmental Protection Agency’s (“EPA”) suite of challenged greenhouse gas (“GHG”) regulations, and EPA sent a major GHG rulemaking proposal – covering new and existing power plants – to the Office of Management and Budget (“OMB”) for review. This pending litigation and rulemaking are likely to set the course forU.S. climate policy, given the limited prospects for congressional action or climate tort lawsuits in the immediate future.
In response to the Supreme Court’s 2007 Massachusetts v. EPA decision, which affirmed EPA’s authority to regulate GHGs under the Clean Air Act, EPA finalized a series of regulations limiting GHG emissions from motor vehicles and certain new or modified major stationary sources. Four such rules are currently being challenged in the D.C. Circuit – the “endangerment finding” declaring that GHG emissions may endanger public health or welfare; the “tailpipe” rule regulating car and light truck GHG emissions; and the consolidated “timing” and “tailoring” rules that began phasing in stationary source GHG limits as of January 2010, while increasing emissions thresholds to limit the number of facilities covered.
Briefing in those cases is underway, and the D.C. Circuit recently announced that all of the GHG-related challenges would be heard by Judges David Tatel, David Sentelle and Judith Rogers, with oral arguments scheduled for February 28-29, 2012. Tatel is well known for his defense of EPA’s regulatory authority in the D.C. Circuit’s consideration of Massachusetts v. EPA, a dissenting opinion whose reasoning was subsequently adopted by the Supreme Court. Sentelle wrote the D.C. Circuit’s plurality opinion in Mass. v. EPA, holding that states lacked standing to challenge EPA’s inaction on climate change. Rogers was not on the Mass. v. EPA panel, though she joined Tatel in dissenting from the denial of a rehearing en banc.
Rogers also authored a 2008 opinion overturning EPA’s weakening of power plant mercury rules, which criticized the agency for “deploy[ing] the logic of the Queen of Hearts, substituting EPA’s desires for the plain text of [the Clean Air Act].” While celebrated by environmental organizations at the time, such textual analysis could pose problems for EPA’s tailoring rule, which departs from the emissions thresholds enumerated in the statute.
Even as its legal authority is being challenged in the courts and Congress, EPA continues to move forward with new GHG regulations. Pursuant to a settlement with several environmental groups and states, includingNew York, EPA recently submitted proposed New Source Performance Standards (“NSPS”) for power plant GHG emissions for OMB review – generally the final step before the proposal is published. The NSPS rule is likely to expand GHG limits for new and existing power plants, most of which are not covered under existing EPA regulations.