Coalition for Responsible Regulation v. EPA: Correct Ruling, Incorrect Legislation

Jeneba H. Barrie, J.D./C.L. 2014, Paul M. Hebert Law Center, Louisiana State University

I.  Introduction

Global warming and climate change are well-documented and both are suspected to coincide with the increasing “concentration of carbon dioxide in the atmosphere.”[1] However, attempts to regulate one possible culprit, greenhouse gases (GHGs), under the Clean Air Act (CAA),[2] have led to legal challenges on both sides of the issue.[3] Greenhouse gases, “when released into the atmosphere . . . act ‘like the ceiling of a greenhouse, trapping solar energy and retarding the escape of reflected heat.’”[4] There are scientists who believe that greenhouse gases are responsible for climate change.[5] The recent ruling in Coalition for Responsible Regulations v. Environmental Protection Agency (EPA) reflects those views.

In Coalition, state and industry groups sought to oppose the EPA’s greenhouse gas regulations under the CAA.[6]  Petitioners challenged a series of greenhouse gas-related regulations and claimed, among other things, that the regulations were “arbitrary and capricious.”[7]The United States Court of Appeals for the District of Columbia Circuit disagreed. Consequently, the D.C. Court might have hammered the proverbial nail in the coffin for those hoping to challenge these regulations in the future.

The D.C. Circuit’s decision was a continuation of the Supreme Courts’ 2007 ruling in Massachusetts v. EPA. In Massachusetts, the Court ruled that greenhouse gases were “air pollutants” under the CAA.[8] The Court stated that if the EPA should find that greenhouse gases cause or contribute to climate change or endanger the public health or welfare, then the EPA has the statutory obligation to regulate them.[9] The Court’s ruling in Massachusettsmight have given the D.C. Circuit the ammunition it needed to confidently[10]dismiss the Petitioners challenges against EPA regulation in Coalition.

The Coalition ruling is noteworthy both for what it did right and what it did wrong. First, the court rightfully ruled that greenhouse gases both caused global warming, and endangered the health of the public. However, the court concealed the real inquiries. The first inquiry should have been whether regulation of greenhouse gases was appropriate under the CAA. The second inquiry should have been whether Congress intended a broad reading of the CAA to include greenhouse gas regulations.

Second, the court failed to apply the Deference Doctrine to the EPA’s interpretation of the EPAs’ own statute. Furthermore, the EPA’s violation of the Non-delegated Doctrine, by unilaterally expanding the CAA without new legislation, went almost unnoticed by the court.  Finally, the Coalition ruling has solidified the Massachusetts decision. Thus, the ruling possibly forecloses future anti-regulatory challenges. The ruling may also hamper Congress’s enactment of effective legislation that would be better suited for this new environmental challenge.

II.  Background: The Clean Air Act

A. The Clean Air Act Timeline, Precedence & Jurisdiction

          1. Timeline: The Clean Air Act 

The current Clean Air Act is the successor of the Air Pollution Control Act of 1955 (APCA).[11] The APCA was noteworthy because it was the first law to allocate federal funds for air pollution research.[12] Different phases of air pollution regulations came into effect after the APCA of 1955.[13] However, the legislation enacting the CAA of 1970 went further by adding provisions for comprehensive regulations.[14] These provisions limited emissions for stationary and mobile sources at both the federal and state levels.[15]

The EPA was officially established on December 2, 1970 to monitor and implement the CAA.[16] In 1977, an amendment of the CAA resulted in a significant overhaul of the CAA of 1970.[17]

Finally, the CAA Amendment (CAAA) of 1990 was the last in the series of Amendments to the CAA.[18] This Amendment initiated the permitting requirements for stationary sources.[19] It further voted in a “small global warming research measure.”[20] Nonetheless, the discussions for the Amendment lacked any acknowledgement that greenhouse gas regulations were already in existence in previous CAA sections.[21] In addition, Congress called on the EPA in section 602 to “determine the global warming potential . . . .” and in section 103(g) to find “nonregulatory” measures in preventing various air pollutants.[22]

          2. Precursor: Massachusetts v. EPA

In 1999, private organizations filed a petition for rulemaking urging the EPA to regulate greenhouse gases of “new motor vehicles” under section 202(a)(1) of the CAA.[23] The EPA rejected the petition in 2003.[24]Petitioners appealed the EPA’s decision to the United States Court of Appeals for the District of Columbia.[25] In a 2-1 decision, the judges ruled that the EPA properly exercised its discretion under the statute in denying the petition.[26] Petitioners filed, and the Supreme Court granted certiorari. The issue before the Court was whether the EPA could regulate greenhouse gases under the CAA.[27]

In a 5-4 decision, the Supreme Court held that greenhouse gases could be regulated under the CAA, if the EPA finds in its judgment that greenhouse gases “cause, or contribute to, air pollution which may reasonably be anticipated to endanger public health or welfare.”[28]Furthermore, the majority stated that the CAA’s “sweeping definition of ‘air pollutant includes any air pollution agent or combination of such agents,”’[29] including greenhouse gases.[30]The case was remanded. The Court never did reach the question of “whether . . . the EPA must make an endangerment finding.”[31] In 2009, the EPA published the Endangerment Findings.[32] As a result of the Endangerment Findings, the EPA implemented four greenhouse gas-related regulations.[33] State and industry petitioners challenged these regulations in Coalition v. EPA.

          3.  Jurisdiction

Under the CAA, Petitioners can directly appeal to the Court of Appeals for the District of Columbia for a review of the EPA’s administrative decisions, including the four greenhouse gas-related rules at issue in Coalition.[34] Coalition consolidated numerous challenges from state and industry groups on the four key regulations placed in effect by the EPA.[35]

B.  Facts: Coalition for Responsible Regulations v. EPA

In the aftermath of Massachusetts, the EPA began scientific investigations as to whether greenhouse gases affected the health or welfare of the public.[36] The findings hinged on Section 202(a) of the CAA.[37] In 2009, the EPA published its Endangerment Findings.[38] It resolved that greenhouse gases “may reasonably be anticipated to endanger public health or welfare,” as interpreted from section 202(a) of the CAA. After the initial Endangerment Findings, the EPA then issued a series of regulations aimed at decreasing greenhouse gas effects.

The first regulation, the “Tailpipe Rule,”[39]sought to reduce greenhouse gas emissions from moving sources, such as cars and light-duty trucks.[40] The EPA’s regulation of greenhouse gas emission standards under the Tailpipe Rule effectively classified greenhouse gases as a “pollutant under the Act.”[41] Once this classification was made, it automatically triggered regulation of greenhouse gases for major stationary sources[42] under the Prevention of Significant Deterioration (PSD)[43] and Title V[44] of the CAA.[45] The result is that these major stationary sources would require a permit for new construction or continued operations.[46]

The second regulations, PSD and Title V, were derived from the Tailpipe Rule. Under PSD, major stationary sources, such as steel mill plants, that emit “over 100 tons per year (tpy)” of any air pollutant would need to apply for state-issued construction permits.[47] Under Title V, the stationary source would also require a “state-issued operating permits” if it emits more than 100 (tpy).[48] Nevertheless, the EPA conceded that the permitting requirements would be burdensome and would result in “tremendous costs to industry and state permitting authorities.”[49] Therefore, the EPA introduced two phase-in programs to limit both the detrimental effects and the burden on state permitting authorities.[50]

The first phase-in program was the “Timing Rule.”[51] The Timing Rule extended the period when both the PSD and Title V permitting requirement would become effective.[52] Without the Timing Rule, both PSD and Title V would have been subject to immediate regulation.[53]

The next phase-in program, the “Tailoring Rule,”[54] mandated that only the largest stationary sources that exceeded “100/250 (tpy)” immediately satisfy the new permitting requirement. This program alleviated permitting requirements for smaller stationary sources. Thus, to be subjected to immediate permitting requirements, a stationary source must produce over 100/250 (tpy) of actual pollutant in addition to exceeding 75,000, or 100,000 (tpy) of CO2, depending on the program and project.[55]

In Coalition, state and industry group petitioners challenged the Endangerment Findings, the Tailpipe Rule, the PSD and Title V permit requirements, along with the Tailoring and the Timing Rules. First, they contended that the Endangerment Findings resulted from an improper interpretation of section 202(a)(1) of the CAA, “which sets out the endangerment-finding standard” at issue in Coalition.[56] Furthermore, they argued that the EPA departed “unilaterally from the CAA’s permitting thresholds and replaced them with numbers of its own choosing.”[57]  Petitioners argued that the Tailpipe Rule was also an improper interpretation of CAA.[58] Petitioners further contended that the Tailpipe Rule did not consider nor did it justify the cost impact and expense in regulating stationary sources under PSD and Title V.

Second, Petitioners challenged the actual Endangerment Findings. Petitioners contended that the EPA did not “quantify” the risk of public endangerment resulting from greenhouse gas effects, making the findings both arbitrary and capricious.[59] Petitioners also questioned the adequacy of the scientific evidence used to support the Endangerment Findings. The Petitioners stated that the EPA “improperly delegated” the scientific findings to other “peer review” organizations and formed its conclusions on global warming based on those delegated information.[60]

Third, the industry groups challenged the permitting requirement for the PSD.[61] Petitioners argued that they should not be required to obtain permits because regulation of the NAAQS did not encompass greenhouse gases.[62] Petitioners further claimed that under sections 165(a), and section 302(g) of the CAA, the definition of “air pollutant” and major emitters resolved to regulate localized pollution.[63]

Finally, state petitioners challenged both the Tailoring and Timing Rules. The state petitioners contended that the Timing Rule was an attempt to “extend the PSD and Title V permitting requirements to greenhouse-gas emissions . . . .”[64] Furthermore, they urged the court to vacate the Tailoring Rule, in hopes that it would lead to absurd consequences, which would force Congress to enact “corrective legislation.”[65]

In a per curiam decision, the D.C. Court of Appeals held that the Endangerment Findings and the Tailpipe Rules were neither arbitrary nor capricious.[66] The court further found that the EPA unambiguously interpreted the CAA,[67]and that EPA was required to extend permitting programs to the stationary emitters also.[68]The court dismissed the state petitioners’ challenges of the Tailoring and Timing Rules. Finally, the court stated that neither state petitioners nor industry groups had standing to challenge the Tailoring and Timing Rules.[69]

III. Analysis

The Coalition court was correct in ruling that the six greenhouse gases contribute to climate change that could reasonably endanger the population. However, the court fell short in properly analyzing the real inquiries: whether the CAA was an appropriate tool for reducing greenhouse gases’ effect on the environment, and whether Congress intended the CAA to encompass greenhouse gas regulations.

The Coalition’s need to adhere to precedence under the common-law principle of stare decisis[70] was commendable based only on the scientific evidence. There was overwhelming evidence that the six greenhouse gases cause or contribute to climate change and global warming.[71] The EPA relied on “scientific data within its technical expertise,”[72] in formulating their Endangerment Findings. As such, the court rightfully gave deference to the EPA’s conclusion. The court was also correct in stating that the Endangerment Findings should not be considered less credible because the EPA failed to state the “definiteness,” “quantification,” and “measurements,” regarding the harm of greenhouse gases to the population.[73]

The most important pronouncement by the court was that the Endangerment Findings were neither arbitrary nor capricious.[74] The court further stated that the EPA’s use of other scientific sources in drawing their conclusions in the Endangerment Findings was appropriate.[75] Lastly, the court stated that the EPA did not abuse its discretion in denying Petitioner’s request to reconsider the Endangerment Findings.[76]

A. Unsuitability of Clean Air Act to Regulate GHGs & Congressional Intent for CAAA

However commendable the Court’s analyses on the scientific evidence, there is truth to the view that adherence to precedence “is not an inexorable command.”[77] Therefore, not all precedents should be blindly followed, even those from the highest Court in the land.

          1. Clean Air Act Unsuitable for Regulation of Greenhouse Gases

Coalition followed the path of the Supreme Court, who insisted that global warming could be addressed under the CAA if the EPA makes certain findings. The Supreme Court gave the EPA “options” that would result in findings that greenhouse gases contribute or cause harm to the public and climate change.[78] The Court did not independently evaluate the appropriateness of regulation under the CAA, but hinged potential regulation on the word “any.[79] Coalition touched upon the Supreme Court’s reason as to why greenhouse gases could be regulated under the CAA.[80]However, that is where the Coalition court’s independent inquiry stopped. The court did not analyze whether the CAA would be the right tool to decrease greenhouse gases and combat global warming.

The appropriate inquiry would have been for the court to dissect the CAA. The court should have questioned whether a statute that was intended for regulation of localized pollution was the best tool to regulate the causes of climate change, to regulate the emission of greenhouse gases, and to combat global warming.[81] The CAA is an “outdated law originally enacted to control regional pollutants that cause direct health effects.”[82] It was not established for greenhouse gas regulation, “which have the same incremental effect on global warming regardless of the location in which they are emitted.”[83]

The CAAA was implemented “before greenhouse gases and global warming moved to the top of scientific and public agendas.”[84] As such, the CAA is unsuitable for greenhouse gas regulation.[85] The records show that regulation of greenhouse gases under the CAA would be very unproductive, confusing and burdensome.[86] The EPA and the courts are making an unwise decision by attempting to answer today’s climate needs by using an “outdated statutory framework.”[87] The convoluted rules can potentially have a negative impact on the economy, and most importantly might be ineffective in reducing greenhouse gas emissions.[88]

Moreover, the EPA was aware of the possibility of absurd results.[89]  Consequently, the possibilities of absurd results lead to the implementation of the Tailoring and Timing Rules. This further indicates that the CAA was not designed to regulate greenhouse gases. Perhaps, the court was strategic in holding that state petitioners did not have standing to challenge the Tailoring and Timing Rules. The court’s reason for denying standing was because, in the court’s view, both state an industry petitioners actually benefited from the rules and suffered no injury. If those rules were implemented immediately, congressional action might have been imminent. Not surprisingly, the court found the state petitioner’s claim of congressional intervention to be “inherently speculative.”[90]

          2. Congressional Intent of CAAA of 1990

The Coalition court also failed to independently analyze the Congressional intent in implementing the CAA. Instead, the court delved into whether the “so-called” corrective legislation would become law.[91] The court followed the Supreme Court in hinging its analyses on the phrase “any air pollutant.” The 101st Congress was aware of global warming and climate change when they enacted the CAA of 1990. It was this knowledge that resulted in both a research provision, and an addition of nonregulatory measures of these air pollutants in the 1990 Amendment.[92]

Furthermore, Congress consulted with other knowledgeable bodies and they determined that certain consumption, worldwide production, and use of “class II substances” might exceed the “base case” projection of chlorine in the atmosphere.[93] If the levels do exceed the base case projections, the knowledgeable bodies were to notify Congress immediately.[94]

The above illustrates that Congress allowed two courses of action for greenhouse gases under the Act. The first was to provide funds for research. The second was for the EPA to provide nonregulatory measures. Moreover, Congress needed to be notified if the knowledgeable bodies made certain findings regarding the amount of atmospheric chlorine. As Coalition rightfully stated, “when congress includes particular language in one section of a statute but omits it in another . . . it is presumed that congress acts intentionally and purposely in the disparate inclusion or exclusion.”[95] Thus, the only types of greenhouse “regulation” under the CAA was to fund air pollution research, the EPA’s implementation of nonregulatory measures to control air pollutants, and a duty for the knowledgeable bodies to report their findings to Congress.

Finally, as previously mentioned, the court dismissed the doctrine of absurd resultchallenge raised by the industry groups.[96] As aforementioned, applying the literal reading of the statute to greenhouse gas regulations would lead to absurd results.[97] Absurd result is undoubtedly not congressional intent. Thus, the EPA had to promulgate other rules in order to conform to the statute, and halt the potential absurdity. This further questions whether Congress intended to regulate greenhouse gases under the CAAA of 1990.

B. Lack of Deference and Unilateral Expansion without Law 

The court did not independently analyze two principles of administrative law, deference and the non-delegation principle, but subtly rejected them. The court dismissed the minority deference argument in Massachusetts because the majority interpretation pointed to regulation.[98] The court also dismissed Petitioner’s unilateral expansion challenge of the EPA number substitution under the Amendment as a “rather colorful” argument.[99]

          1. Lack of Administrative Deference to EPA 

“Chevron Deference” is a doctrine that refers to a court’s interpretation of administrative statutes when there is an ambiguity or Congress was silent on the matter.[100] Chevron Deferenceworks the following way: if Congress has clearly spoken on the matter both the agency and the court must respect that intention.[101]However, if there is Congressional silence or ambiguity as to the matter (statute), then the court determines whether that administrative agency’s interpretation of the statute is “based on a permissible construction of the statute.”[102] Nevertheless, the Chevron Doctrine does not permit the court to “simply impose its own construction on the statute . . .”[103]

The court foreclosed any deference to the EPA because the majority opinion in Massachusettsmade it clear that the statute was “unambiguous.”[104] As previously stated, the court deferred to the EPA only on the basis of scientific data within their expertise.[105]  The Coalition court did not independently defer to the EPA’s interpretation of the statute. The proper inquiry would have been whether the EPA’s interpretation of the CAA should be entitled to deference.

The Court stated that the CAA was unambiguous and includes regulation of greenhouse gases when it used the broad term “any.” The EPA advised otherwise.[106] It stands to reason that there is either Congressional silence or ambiguity as to the interpretation of the CAA.

The court should have reviewed the Act and deferred to the EPA’s prior interpretation if it found the Act to be ambiguous. However, the court foreclosed this effort by adopting a higher court’s interpretation. The EPA’s interpretation in the Denial was sensible. The EPA stated that the CAA “does not authorize regulation to address global climate change.”[107] The EPA made this determination by reviewing congressional actions and legislative history. The EPA also conducted a comprehensive assessment of the CAA. The assessment concluded that the CAA was ill suited for greenhouse gas regulation.[108] Though overruled,[109] the earlier D.C. Circuit panel conducted the proper inquiry and accorded deference to the EPA, who is in charge of interpreting the CAA.

          2. Unilateral Expansion of CAA—New Policies without New Laws[110]

Admittedly, the above analysis argues for deference to the EPA. However, the court failed to analyze whether the unilateral expansion of the CAA was constitutional. Similar to Chevron Deference is the “Non-Delegation Doctrine.”[111]The doctrine states that only Congress has legislative powers, and “Congress must delegate its legislative authority by statute before another branch may exercise legislative-type discretion.”[112] Doing otherwise is unconstitutional.

Courts are hesitant to overturn administrative decisions based on this doctrine and have expressly not done so since the 1930’s.[113] This doctrine is considered dead. However, to the extent of its viability “it operates as a constitutional avoidance canon, through which the Court narrowly construes statutory delegations that otherwise appear . . . broad. . . .”[114]This doctrine works to tighten administrative agency’s interpretation of their statutes. When this “tightening” is done, the agency, then, can base its action on an Intelligible Principle pursuant to the boundaries set by Congress.[115]

Arguably, the Non-delegation Doctrine is alive, but under a disguise. For example, the reasoning applied in two landmark cases, INS v. Chadha and Clinton v. City of New York, correlated with the doctrine’s reasoning.[116]  The Coalition court did not discuss the Non-delegation Doctrine. Likewise, the court could not have examined whether there was an Intelligible Principle or boundary under which the EPA could hinge their expansion of the CAA to include greenhouse gas regulation. An Intelligible Principle would provide that Congress has constitutionally delegated power to an agency since there are boundaries in which the agency can or cannot act.[117] The EPA had no such Intelligible Principle to unilaterally expand the CAA, since the Act did not permit greenhouse gas regulations.

The EPA, by regulating greenhouse gases, has unilaterally expanded the Act administratively. There are new policies without new legislation. More importantly, there has also been a “rewrite of existing laws.”[118] Unilateral expansion of the CAA is both improper and unconstitutional. Furthermore, the opposition of the EPA’s “administrative measures” undermines the goal of decreasing greenhouse gas emissions.[119]On the other hand, congressional statutes would be more effective.[120] Moreover, the “unprecedented expansion of the CAA” would negatively impact the economy. For example, smaller stationary sources, including schools and hospital, that emit greenhouse gases could trigger the permitting requirement.[121]

This sets an incomprehensible precedence. Coalition has permitted the EPA to regulate “any” air pollutant. Thus, if the majority opinion in Massachusetts, which the Coalition court adopted, is correct, then “all airborne compound of stripe” can be regulated.[122] It stems to reason that anything from “Frisbee to flatulence”[123] can be regulated. This could not reasonably have been Congress’s intent in enacting the CAA.

C. Foreclosure of Greenhouse Gas-Related Challenges & Future congressional action

          1. Possible Foreclosure of Further Challenges

Another detrimental effect of Coalition is that it could disable future challenges of the EPA’s authority to regulate greenhouse gases under the CAA. The precedence has been set after Coalition followed the line of reasoning discussed in Massachusetts. Although the courts have good intentions about regulating the harmful effects of greenhouse gases, they have proceeded incorrectly. The courts, instead, should rely on the laws themselves,[124] by requiring the enactment of a statute better suited to combat greenhouse gases. However, by forcing an old law into a new problem, it is reasonable to say that future anti-regulatory challengers would be facing an uphill battle.

         2. Future Congressional Inaction

The principle that the Coalition ruling has solidified is that Congress does not need to act because the EPA has authority to regulate greenhouse gases, despite evidence to the contrary.[125] This principle flows in line with the abstinence of the non-delegation approach taken in Massachusetts.[126] Thus, before ruling, the proper inquiry by the court would have been to examine the consequence of the EPA’s regulation of greenhouse gases. That is, would their ruling foreclose future congressional action? The court’s rejection of EPA greenhouse gas regulation would have opened the door for a better-suited statute to regulate greenhouse gases and combat global warming.

Coalition’s refusal in making this independent analysis, confirmed the precedence that “Congress need take no further action, because EPA already . . . has the authority to make a first-order judgment about whether greenhouse gases should be regulated.”[127] The court’s ruling hampers congressional action in passing a proper bill. This further impedes on the role vested in Congress under the Constitution.[128]

IV.  Conclusion

Global warming is a very serious matter that must be addressed. However, the CAA is an ill suited and out of date tool whose application leads to absurd results. Furthermore, the statutory language in the CAA lacks congressional intent to regulate greenhouse gases. However, since the statute is ambiguous, the court should have afforded deference to the EPA. The failure to do so has lead to a unilateral expansion of the CAA. This failure could also foreclose future challenges to greenhouse gas regulations. Crucially, it could hamper future congressional action in passing appropriate legislation to successful combat global warming. The court’s attempt to squeeze old law into solving a new problem might actually hinder effective regulation of greenhouse gases.

 

Preferred citation: Jeneba H. Barrie, Coalition for Responsible Regulation v. EPA: Correct Ruling, Incorrect Legislation, LSU J. Energy L. & Res. Currents (September 25, 2013), http://sites.law.lsu.edu/jelrblog/?p=318.


[1] Massachusetts v. EPA, 549 U.S. 497, 504-05 (2007).

[2] 42 U.S.C. §7401–7671q (2006).

[3] E.g., Massachusetts, 549 U.S. at 505 (mentioning the environmentalist position in favor of the regulation of GHGs).  Cf. Coalition for Responsible Regulations v. EPA, 684 F.3d 102 (D.C. Cir. 2012) (against regulation of GHGs).

[4] Coalition, 684 F.3d at 114 (quoting Massachusetts, 549 U.S. at 505).  The six regulated greenhouse gases are carbon dioxide (CO2),methane (CH4), nitrous oxide (N2O), hydrofluorocarbons (HFCs), perfluorocarbons (PFCs), and sulfur hexafluoride (SF6).  Coalition, 684 F.3d at 114 (citing Endangerment and Cause or Contribute Findings for Greenhouse Gasses Under Section 202(a) of the Clean Air Act, 74 Fed. Reg. 66,496, 66,536-37 (Dec. 15, 2009)).

[5] Coalition, 684 F.3d at 114.

[6] Id. at 113-14; Id. at 123.

[7] Id. at 113.

[8]  Massachusetts, 549 U.S. at 506 (quoting 42 U.S.C. § 7602(g)) (“[T]he [CAA] defines ‘air pollutants’ to include any ‘air pollution agent or combination of such agents, including any physical, chemical, biological, radioactive . . . substance or matter, which is emitted into or otherwise enters the ambient air.’”)

[9] Massachusetts, 549 U.S. at 532.

[10] Coalition, 684 F.3d 102. (The Court of Appeals first rejected these claims for regulation under the CAA, which then lead to the Court granting certiorari.)

[11] Pub. L. No. 84-159, ch. 360, 69 Stat. 322 (1955).

[12] United States Environmental Protection Agency, History of the Clean Air Act, Clean Air Act http://epa.gov/oar/caa/caa_history.html, (last updated Feb. 17, 2012).

[13] Id. Clean Air Act of 1963, Pub. L. No. 88-206, 77 Stat. 392 (established ways to monitor air pollution and techniques to control pollution); Air Quality Act of 1967, Pub. L. No. 90-148, 81 Stat. 485 (the federal government monitored stationary sources and “conducted ambient monitoring studies.”)

[14] Clean Air Act Amendment of 1970, Pub. L. No. 88-206, 77 Stat. 392 (codified at 42 U.S.C §7401).

[15] U.S. Environmental Protection Agency, supra note 12 (The CAA of 1970 also authorized other significant programs that helped regulate stationary source emission standards. These programs include—“the National Ambient Air Quality Standards (NAAQS, pronounced “knacks”), State Implementation Plans (SIPs), New Source Performance Standards (NSPS), and National Emission Standards for Hazardous Air Pollutants (NESHAPs)).

[16] National Environmental Policy Act, 42 U.S.C. §4332 (2006).

[17] Clean Air Act Amendments of 1977, Pub. L. 95-95, 91 Stat. 685 (The 1977 Amendment included a focus on the PSD standard as well as a focus on the NAAQS and the attainment areas).

[18] Clean Air Act Amendment of 1990 Pub. L. No. 101-549, 104 Stat. 2399 (codified at 42 U.S.C. §7401–7671q).

[19] Id. at §§7661–7661f; see also, U.S. Environmental Protection Agency, supra note 12.

[20] Philip A. Wallach, U.S. Regulation of Greenhouse Gas Emissions, Governance Studies at Brookings, 6 (Oct.2012), http://www.brookings.edu/~/media/research/files/papers/2012/10/26%20climate%20change%20wallach/26%20climate%20change%20wallach.pdf.

[21] Id.

[22] Clean Air Act Amendments of 1990, section 602; See Clean Air Act Amendments of 1990, section 603  (“If in consultation with . . . National Oceanic and Atmospheric Administration, and after notice and opportunity for public comment, the Administrator determines that the global production, consumption, and use of class II substances are projected to contribute to an atmospheric chlorine loading in excess of the base case projections by more than 5/10 ths parts per billion, the Administrator shall so inform the Congress immediately . . . .); see also Clean Air Act Amendments of 1990, section 103(g) (“. . . [T]he Administrator shall conduct a basic engineering research and technology program to develop, evaluate, and demonstrate nonregulatory strategies and technologies for air pollution prevention. . . .”).

[23] Massachusetts, 549 U.S. at 510; see alsoControl of Emissions From New Highway Vehicles and Engines, 68 Fed. Reg. 52922, 52924 (Sept. 8, 2003).

[24] See Massachusetts, 549 U.S. at 511(the EPA opened the petition for comments on all matters covered in the petition. The EPA stated, among other things that they do not have the authority to “issue mandatory regulations to address global climate change. . . .”); see alsonote 106 infra at 52925.

[25]  Massachusetts v. EPA, 415 F.3d 50; see supra text accompanying note 10.

[26] See Massachusetts, 415 F.3d at 58.

[27] Massachusetts, 549 U.S. at 550 (another issue before the Court was whether Massachusetts had standing to challenge the EPA denial of rulemaking.)

[28] Id. at 528.

[29] Id. at 528-529.

[30] There were two dissents. The first dissent opinion authored by Chief Justice Roberts stated that Massachusetts did not have standing to bring the case. Id. at 535 (Roberts, J., dissenting). The second dissenting opinion authored by Justice Scalia asserted that the majority misread the statute focusing on the first part of section 202(a)(1) and disregarded the second part. The dissent further stated that under the Chevron Doctrine the EPA’s interpretation of the statute should have been afforded deference.  Id. at 552-53 (Scalia, J., dissenting) (citing Chevron U.S.A.., Inc. v. Natural Resources Defense Council, 467 U.S. 837 (1984)).

[31] Id. at 534.

[32] Endangerment and Cause or Contribute Findings for Greenhouse Gases Under Section 202(a) of the Clean Air Act, 74 Fed. Reg. 66,496 (Dec. 15, 2009).

[33] Coalition, 684 F.3d at 114; see Light-Duty Vehicle Greenhouse Gas Emission Standards and Corporate Average Fuel Economy Standards; Final Rule, 75 Fed. Reg. 25324-01 (May 7, 2010); Reconsideration of Interpretation of Regulation that Determine Pollutants Covered by Clean Air Act Permitting Program, 75 Fed. Reg. 17,004 (Apr. 2, 2010); Prevention of Significant Deterioration and Title V Greenhouse Gas Tailoring Rule, 75 Fed. Reg. 31514-01 (June 3, 2010).

[34] 42 U.S.C. § 7607 (2012).

[35] See Coalition, 684 F.3d at 116.

[36] Id. at 114.

[37] Clean Air Act §202(a)(1) (codified as 42 U.S.C. § 7521(a)(1) (2012)) (The Administrator shall by regulation prescribe (and from time to time revise). . . standards applicable to the emission of any air pollutant from any class or classes of new motor vehicles or new motor vehicle engines, which in his judgment cause, or contribute to, air pollution which may reasonably be anticipated to endanger public health or welfare. . . .”)) (emphasis added).

[38] 74 Fed. Reg. 66,496.

[39] Light-Duty Vehicle Greenhouse Gas Emission Standards and Corporate Average Fuel Economy Standards; Final Rule, 75 Fed. Reg. 25324-01 (May 7, 2010).

[40] Id. at 25,326 (the Regulation also set the standard for fuel efficiency, which was part of a joint effort with the National Highway Traffic Safety Administration (NHTSA)).

[41] Id.

[42] 42 U.S.C. § 7479(1) (2012); see also 42 U.S.C. § 7602(j) (2012) (. . . ‘“the terms ‘major stationary source’ and ‘major emitting facility’ mean any stationary facility or source of air pollutants which directly emits, or has the potential to emit, one hundred tons per year or more of any air pollutant. . . .”’).

[43] Id.

[44] 42 U.S.C § 7661(a-f) (2012) (permitting requirements).

[45] Coalition, 684 F.3d at 115.

[46] Id.

[47] Id., See also 42 U.S.C. § 7475 (2012); 42 U.S.C. § 7479(1) (2012).

[48]  See Id.

[49] Coalition, 684 F.3d at 116.

[50] Id. at 144 (quoting Prevention of Significant Deterioration and Title V Greenhouse Gas Tailoring Rule, 75 Fed. Reg. 31514-01, 31,563 (June 3, 2010)) (“…to address these permit applications, ‘authorities would face over $21 billion in additional permitting costs each year due to [greenhouse gases], compared to the current program cost of $62 million each year.”’)

[51] Reconsideration of Interpretation of Regulation That Determine Pollutants Covered by Clean Air Act Permitting Program, 75 Fed. Reg. 17,004 (Apr. 2, 2010).

[52] Coalition, 684 F.3d at 144 (citing 75 Fed. Reg. 17,004, 17,017-19).

[53] Id. at 115 (since the Tailpipe Rule took effect on January 11, 2011—it effectively triggered regulation of major stationary sources under PSD and Title V. The Timing Rule extended the regulation time).

[54] Prevention of Significant Deterioration and Title V Greenhouse Gas Tailoring Rule, 75 Fed. Reg. 31514-01.

[55] Coalition, 684 F.3d at 116 (citing 75 Fed. Reg. 31,534, 31,523).

[56] Id. at 117.

[57] Id. at 145.

[58] Id. at 126.

[59] Id. at 122.

[60] Id. at 119 (Petitioners claimed that EPA relied on “major assessment” of climate change and greenhouse gases issued by the Intergovernmental Panel on Climate Change (IPCC), the U.S. Global Climate Research Program (USGCRP), and the National Research Council (NRC)).

[61] Id. at 133, 138 Petitioners interpretation of the PSD would mean that they would not have to comply with the permitting requirement because in order to comply it must be “(1) a source has major emissions of a NAAQS criteria pollutant and (2) the source is located in that area attaining that pollutant’s are quality standard” –but the court countered with its own interpretation of what petitioners contend, by stating: . . . “thus, for example, a source would be subject to the PSD permitting requirement if it 1) emits over 100/250 tpy of sulfur dioxide (a NAAQS criteria pollutant), and 2) is located in an area that is in ‘‘attainment,’’ or is ‘‘unclassifiable,’’ for sulfur dioxide. The court further reasoned that the petitioners interpretation was incorrect because “under this approach, a stationary source could never be subject to the PSD program solely because of its greenhouse gas emissions” (emphasis added).

[62] 42 U.S.C. § 7476 (the regulated NAAQS were: hydrocarbons, carbon monoxide, photochemical oxidants, and nitrogen oxides).

[63] Clean Air Act § 165(a) (codified as 42 U.S.C. § 7475(a)); Clean Air Act § 302(g) (codified as 42 U.S.C. § 7602(g)).  165(a)—(a) No major emitting facility on which construction is commenced after August 7, 1977, may be constructed in any area to which this part applies unless—(1) “a permit has been issued . . . setting forth emission limitations for such facility. . . .”

306(g)—The term “air pollutant” means any air pollution agent or combination of such agents, including any physical, chemical, biological, radioactive (including source material, special nuclear material, and byproduct material) substance or matter which is emitted into or otherwise enters the ambient air. Such term includes any precursors to the formation of any air pollutant; to the extent the Administrator has identified such precursor or precursors for the particular purpose for which the term “air pollutant” is used.

[64] Coalition, 684 F.3d at 144 (quoting state petitioners Timing & Tailoring Br. 67).

[65] Id. at 146-147.

[66] Id.at 147.

[67] Id. at 136.

[68] Id. at 103.

[69] Id. at 113; see also Lujan v. Defenders of Wildlife, 504 U.S. 555 (1992) (petitioners must have a concrete injury that is particularized, caused by the defendant and can be redressed by the court).

[70] Black’s Law Dictionary defines stare decisis as a “doctrine of precedent, under which a court must follow earlier judicial decisions when the same points arise in litigation.” Black’s Law Dictionary, 1537 (9th ed. 2009).

[71] Coalition, 684 F.3d 102 at 120—121.

[72] Id. at 120 (quoting Am. Farm Bureau Fed’n v. EPA, 559 F.3d 512, 519 (D.C.Cir.2009)).

[73] Id. at 122—123.

[74] Id.

[75] Id.

[76] Denial of the Petition To Reconsider the Endangerment and Cause or Contribute Finding for Greenhouse Gases Under Section 202(a) of the Clean Air Act (“ Denial”) 75 Fed. Reg. 49556—57 (Aug. 3, 2010) (the aforementioned arguments—for example, lack of definiteness—were the reasons for the Petitioners requests and the EPA’s denial).

[77] Montejo v. Louisiana, 556 U.S. 778, 807 (2009) (quoting Payne v. Tennessee, 501 U.S. 808 (1991)).

[78] Massachusetts, 549 U.S. at 549—560 (5-4 decision) (Scalia, J., dissenting)(rejecting the majority’s “multiple choice” approach that would effectively precludes any other conclusion but regulation of greenhouse gases, and stating that the majority’s lack of deference to the EPA’s was incorrect)).

[79] Coalition, 684 F.3d 102 at 135(the Supreme Court concluded that the word “any” air pollutant under the Clean Air Act included greenhouse gases).

[80]  “The Supreme Court has already held that EPA indeed wields the authority to regulate greenhouse gases under the CAA,” Coalition, 684 F.3d 102 at 119 and “The Supreme Court’s decision in Massachusetts v. EPA compels this interpretation” of Section 202(a)(1) Coalition, 684 F.3d 102 at 126

[81] Regulating Greenhouse Gases Under the Clean Air Act, 73 Fed. Reg. 44354 (July 30, 2008) (to be codified at 40 C.F.R. ch. I).

[82] Id. at 44, 355.

[83]  Jody Freeman & Adrian Vermeule, Commentary, Massachusetts v. EPA: From Politics To Expertise, 2007 Sup. Ct. Rev. 51 at 72 (2007).

[84] Id. at 78.

[85] Id. Regulating Greenhouse Gases Under the Clean Air Act, 73 Fed. Reg. 44354 at 44355.

[86] Id.

[87] Laura King, Changing Climate, Unchanging Act, Improvising Agency, Enabling Court: The Story of Coalition for Responsible Regulation v. EPA, 37 Harv. Envtl. L. Rev. 267, 276 (2013).

[88] Id.

[89] See supra note 50 and accompanying text.

[90] Coalition, 684 F.3d 102 at 147.

[91] Id.

[92] See supra note 22 and accompanying text.

[93] Id.  (it was projected that the base case would exceed projections by more than 5/10 ths parts per billion).

[94] Id. at 603 (congressional requirement of notification and reporting research finding back to Congress indicates that a plan of action was not readily available under CAAA of 1990 for Greenhouse gas emissions).

[95] Id. at 142.

[96] See Tailoring Rule, 75 Fed. Reg. at 31517 (‘“However, under the ‘absurd results’ doctrine, the literal meaning of statutory requirements should not be considered to indicate congressional intent if that literal meaning would produce a result that is senseless or that is otherwise inconsistent with—and especially one that undermines—underlying congressional purpose”’).

[97] Id.

[98] Coalition, 684 F.3d 102 at 138.

[99] Id.

[100] Chevron, 467 U.S. 837 at 843.

[101] Id. at 842—843.

[102] Id. at 843.

[103] Id.

[104] Coalition, 684 F.3d 102 at 138.

[105] See discussion supra Part III.

[106] Control of Emissions From New Highway Vehicles and Engines (Notice of Denial), 68 Fed. Reg. 52922-02 at 52924.

[107] Id. at 52925.

[108] Id.

[109] Massachusetts, 415 F.3d 50 at 59 (Overruled by Massachusetts v. EPA) (“We thus hold that the EPA Administrator properly exercised his discretion under § 202(a)(1) in denying the petition for rulemaking”).

[110] Wallach, U.S. Regulation of Greenhouse Gas Emissions , supra.

[111] R. Craig Kitchen,  Negative Lawmaking Delegations: Constitutional Structure and Delegations to the Executive of Discretionary Authority to Amend, Waive, and Cancel Statutory Text, 40 Hastings Const. L.Q. 525, 535 (2013).

[112] Id. (emphasis added).

[113] Id. at 536.

[114] Id. at 537.

[115] Whitman v. American Trucking Association, Inc. 531 U.S. 457 (2001).

[116] R. Craig Kitchen,  Negative Lawmaking Delegations: Constitutional Structure and Delegations to the Executive of Discretionary Authority to Amend, Waive, and Cancel Statutory Text, 40 Hastings Const. L.Q. 525, 537—40 (2013).; see INS v. Chadha, 462 U.S. 919 (1983)(‘“… [T]he Court concluded that the House’s action was ‘essentially legislative in purpose and effect’ because it ‘alter[ed] the legal rights, duties and relations of persons, including the Attorney General, Executive Branch officials and Chadha, all outside the legislative branch’”); see also Clinton v. City of New York, 524 U.S. 417 (1998) (the Court held that the Presidents Line Item Veto of a bill which was granted to him by the was Line Item Veto Act, was unconstitutional, because it gave the President power to unilaterally change the statutory text of the Act).

[117] Whitman, 531 U.S. 457 at 472.

[118] Valerie Volcovici, E.P.A Greenhouse Gas Rules Face New Legal Challenges, Reuters (Feb. 27, 2012, 2:28 PM), http://www.reuters.com/article/2012/02/27/us-usa-epa-court-idUSTRE81Q1Y120120227 (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. “[T]he Tailoring Rule is the weakest of the EPA’s rules because it violates explicit language in the Clean Air Act. . . .”).

[119] Richard O. Faulk, John S. Gray,  Climate Change Regulation and Litigation: A “Lost Decade” of Controversy and Confrontation, 80 Def. Couns. J. 187, 188 (2013).

[120] Id.

[121] Regulating Greenhouse Gas Emissions Under the Clean Air Act, 73 Fed. Reg. 44354, 44355 (2008).

[122] Massachusetts, 549 U.S. 497 at 500.

[123] Massachusetts, 549 U.S. at 549—560.

[124] See King, Changing Climate, Unchanging Act, Improvising Agency, Enabling Court: The Story of Coalition for Responsible Regulation v. EPA supra  at 267.

[125] See supra Part III.A.2.

[126] See Freeman & Vermuele, Massachusetts v. EPA: From Politics To Expertise, supra .

[127] Id. at 79.

[128] U.S. CONST. art. I. §I. (“All legislative Powers herein granted shall be vested in a Congress of the United States, which shall consist of a Senate and House of Representatives”) (emphasis added).

 

 

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