The "coward of the county?" A little light on political games and the legal background of EPA`s unavoidable "endangerment" finding

TokyoTom — Sun, 30 Aug 2009 17:33:00 GMT

In April, under a regulatory process that the Bush EPA was compelled to commence by a Supreme Court decision (pursuant to the April 2, 2007 decison in Massachusetts v. EPA, 549 U.S. 497 (2007), in which the Supreme Court determined that greenhouse gases are air pollutants covered under Section 202 of the Clean Air Act, which applies to motor vehicles), the EPA issued a proposed finding that (i) current and projected atmospheric concentrations of CO₂ and five other greenhouse gases (methane (CH₄), nitrous oxide (N₂O), hydrofluorocarbons (HFCs), perfluorocarbons (PFCs), and sulfur hexafluoride (SF₆) threaten the public health and welfare of current and future generations (due to their contribution to climate change), and that (ii) emissions of such gases from motor vehicles contribute to atmospheric concentrations of key greenhouse gases and thus to the threat of climate change.

The EPA commenced a 60-day public comment period that ended on June 23, but which it has subsequently determined to keep open while it develops its final findings. If the findings are issued, they will compel the EPA to develop regulatory standards for new motor vehicles under Section 202 of the CAA, and probably as well to develop regulatory standards for utilities, industry and other parts of the economy under other parts of the CAA, which have essentially identical endangerment finding triggers (but which were not the subject of the Supreme Court decision).

The U.S. Chamber of Commerce has now stirred up a bit of a kerfluffle about the EPA`s looming final "endangerment" decision, by requesting the EPA to adopt an unusual, time-consuming trial-like procedure in reaching its decision. What`s really going here?

While no doubt the Bush Administration would have been delighted to consider such a device of postponing any endangerment decision, the Obama Administration`s lack of interest in further delay (having already extended the hearing process by several months) has earned for them from some conservative corners (Chris Horner of the NRO`s "Planet Gore") the judgment that it is the Obama administration that is being "cowardly". Surely there are excellent arguments to be made that the Clean Air Act should not be used to regulate U.S. industry on climate matters, but it is Congress that passes laws and the President who signs them into law, not the administrative agencies. The Bush administration and Republican Congress could have forestalled the present situation by amending the CAA to exclude CO2; their lack of interest in doing so has forced this matter into the hands of the Obama EPA.

On the other hand, the Obama administration`s hands have been tied by the Bush administration`s inaction, though it is not doubt happy to use the dangling endangerment finding as a Damoclean sword to get Congress moving on climate change legislation (and perhaps as a backup in case Congress cannot be persuaded). However, as the EPA has considerable discretion in determining when to issue its final determination, it can withhold the endangerment finding until it decides: it is really serious about passing climate change legislation, is ready to put significant pressure on Congress to get it, thinks it can live with Congress comes up with, and is willing to live with the consequences of "failure", in which case it will have to move forward on promulagating GHG emissions regulations for new motor vehicles.

It`s useful in looking at this situation to ponder just how much wriggle room the EPA actually has on substantive issue. The answer? Very little. On this, allow me to quote from respected libertarian resource law professor Jonathan Adler (Case Western, and commenter at The Volokh Conspiracy legal blog and at NRO):

1. In an April 22 post at the NRO`s Corner, Adler answers the question "D[oes] the EPA Have a Choice?" (emphasis added)

"Many folks on the right, including Jonah, have criticized the EPA's decision to issue an endangerment finding as some sort of power grab. Implicit in this argument is the idea that the EPA had a meaningful choice whether to conclude that the emission of greenhouse gases causes or contributes to air pollution that can be reasonably anticipated to endanger the public health and welfare (the relevant legal standard under Section 202). I reject this premise, and I don't believe one has to accept apocalyptic climate change scenarios to reach this conclusion. For one thing, the standard is somewhat precautionary — the language empowers the EPA to regulate despite the existence of uncertainty. For another, it would be very difficult for the EPA to justify a contrary conclusion under current law.

"The Supreme Court's decision in Massachsuetts v. EPA held that greenhouse gases were air pollutants under the Clean Air Act subject to EPA regulation. This means that the only question for the EPA is whether such GHG emissions meet the standard above. Whether or not one believes greenhouse gases pose a serious threat, the EPA does not get to make this decision on clean slate. For years the EPA has been stating that climate change is a serious problem. Indeed, the Bush Adminsitration, at the very same time it declined to regulate greenhouse gases under the Clean Air Act, asserted the Agency's belief that climate change is a serious problem. Therefore, for the EPA to not make an endangerment finding, not only would it have to argue that the relevant evidence does not support the conclusion that greenhouse gases could be "reasonably anticipated" to threaten public health and welfare, but also that the EPA's many prior pronouncements about the threat of climate change over multiple adminsitrations [sic] were wrong. Even though courts are quite deferential to agency interpretations of scientific evidence, this would be a difficult case to make. Courts are more demanding when an agency reverses course, and the EPA would have an awful lot of contrary claims to explain away. Thus, even if the Obama EPA had been disinclined to make an endangerment finding, I think such a finding could have been compelled in court.

2. Adler also commented earlier at The Volokh Conspiracy on the likelihood of the EPA prevailing in the case of any industry legal challenge to an endangerment finding, and the next regulatory steps after the endangerment finding (emphasis added):

The proposed findings will now go through a 60-day public comment period. Shortly thereafter, the findings will be finalized. Industry and anti-regulatory groups will almost certainly challenge the findings in court, and their legal challenges will almost certainly fail. Even if one doubts the accumulated scientific evidence that anthropogenic emissions of greenhouse gases contribute to climate change and that climate change is a serious environmental concern, the standard of review is such that the EPA will have no difficulty defending its rule. Federal courts are extremely deferential to agency assessments of the relevant scientific evidence when reviewing such determinations. Moreover, under the Clean Air Act, the EPA Administrator need only "reasonably . . . anticipate" in her own "judgment" that GHG emissions threaten public health and welfare in order to make the findings, and there is ample evidence upon which the EPA Administrator could conclude that climate change is a serious threat. This is a long way of saying that even if climate skeptics are correct, the EPA has ample legal authority to make the endangerment findings.

Once the findings are finalized, the EPA will then be required to develop regulatory standards for new motor vehicles under Section 202 of the Act. As a practical matter, the EPA will also have to prepare to regulate greenhouse gas emissions under other portions of the act, as the relevant endangerment findings necessary to trigger such regulation are effectively identical to that which triggers motor vehicle emission regulation under Section 202. Even if the EPA sought to resist such regulation, it would be relatively easy to force the EPA's hand through additional citizen suits, much like the suits that set the EPA on this course in the first place....

Regulating greenhouse gases under the Clean Air Act will not be a particularly cost-effective way to reduce the nation's greenhouse gas emissions. The EPA and White House understand this, but they also recognize that, under Massachusetts v. EPA, the agency does not have much choice. Moreover, the threat of Clean Air Act regulations on greenhouse gases will create significant pressure upon Congress to replace such regulation with some alternative, such as the cap-and-trade program.

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TT`s Lost in Tokyo : adler