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US court upholds federal GHG regulations

26 Jun 2012, 6.54 pm GMT

Washington, 26 June (Argus) — A federal court today gave the Environmental Protection Agency a major legal victory when it upheld the agency's greenhouse gas regulations for automobiles and industrial facilities.

A three-judge panel of the DC Circuit Court of Appeals sided with EPA on its endangerment finding for GHGs and limits on emissions from new cars and trucks, calling the agency's legal reasoning “unambiguously correct.” It dismissed challenges to EPA's tailoring rule for permitting of major industrial facilities, including power plants and refineries, on the ground that state and industry plaintiffs did not have any legal standing to sue the agency.

EPA called the unanimous decision a “strong validation” of its efforts to reduce GHG emissions. “I am pleased that the [court] found that EPA followed both the science and the law in taking common-sense, reasonable actions to address the very real threat of climate change by limiting greenhouse gas pollution from the largest sources,” EPA administrator Lisa Jackson said.

Industry groups said they were disappointed with the ruling and will consider options that include asking the full DC Circuit to review the case or appealing directly to the US Supreme Court.

“Today's ruling is a setback for businesses facing damaging regulations from the EPA. The Clean Air Act was not designed to regulate greenhouse gases, and even the EPA said that it could not comply with the statute as written to implement these regulations,” National Association of Manufacturers president Jay Timmons said on behalf of a coalition of more than 20 industry groups that sued EPA.

The coalition includes the American Petroleum Institute, American Fuel & Petrochemical Manufacturers, Independent Petroleum Association of America and Western States Petroleum Association.

The ruling comes on the three-year anniversary of the US House vote to pass the Waxman-Markey cap-and-trade legislation. The bill, which ultimately died in the Senate, would have required the US to reduce GHG emissions 83pc by 2050 and would have prohibited including GHGs in Clean Air Act permits.

The court said EPA's 2009 finding that GHGs endanger public health and welfare was “consistent” with the Clean Air Act and that the agency had relied on a “substantial” record of scientific evidence.

“In the end, petitioners are asking us to re-weigh the scientific evidence before EPA and reach our own conclusion. This is not our role,” the court said.

The court also found EPA complied with the Clean Air Act when it issued GHG standards for new cars and light trucks, noting the agency had little choice under the law but to issue the regulations once it made the endangerment finding.

The judges dismissed challenges to EPA's tailoring rule for permitting of industrial sources, as well as for a related decision on when GHGs would fall under the Clean Air Act's main permitting programs. It also upheld EPA's interpretation of the Clean Air Act to find that the Prevention of Significant Deterioration (PSD) program applies to GHG emissions.

Many legal experts expected the tailoring rule to be the most challenging part of the case for EPA because it attempts to bypass emissions thresholds written into the Clean Air Act. But the court said the petitioners had failed to show any harm from the tailoring rule, and noted that the proposed remedy of overturning it would not help. In either case, industrial sources would still be subject to permit requirements.

“If anything, vacature of the tailoring rule would significantly exacerbate petitioners' injuries,” the court said.

The Clean Air Act sets thresholds of 100-250 short tons/yr for PSD and Title V permit requirements. EPA's tailoring rule raised those thresholds to 75,000-100,000 st/yr for GHG emissions to limit the number of sources that would need permits.

The judges' decision included a humorous rebuttal to the petitioner's argument that overturning the rule would force Congress to intervene, referencing the old “Schoolhouse Rocks” cartoon's lessons on how a bill becomes law. “As a generation of schoolchildren knows ... 'It is not easy to become a law,'” the court said.

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