Jessica Baker

September 17, 2010

Tuesday, September 14th marked the 40th birthday of the Clean Air Act. But not everyone in Washington and around the country was celebrating. This negative sentiment stems back to three years ago in Massachusetts v. EPA. In this case, the Supreme Court ruled that greenhouse gases are air pollution and as a consequence fall under the regulation of the Clean Air Act. Citing this holding, the Environmental Protection Agency Administrator announced earlier this year the schedule for implementing the new regulations on greenhouse emissions under the Act. According to the timetable, if Congress does not interfere, large emitters of carbon dioxide could see the effects of the new regulations as early as 2011, and many are not thrilled.

Many are unhappy that the regulations are being implemented so quickly. There are four main regulations being criticized. First, the "endangerment finding" labels six different greenhouse gases as threats to human health and welfare. Second is the "triggering rule," which changed the previous regulation's criteria of what actions cause stationary pollutants to be subject to regulation under the Clean Air Act. The "auto rule" sets greenhouse gas emissions standards for cars and light-duty trucks. Lastly the "tailoring rule" forces large emitters to obtain air permits for GHG emissions.

Various members of Congress, states, businesses, and advocacy groups have raised challenges to the four regulations. Several of the lawsuits are substantive, claiming the regulations will be costly burdening the American economy, and that the EPA is exceeding its authority. However, there are groups who are concerned with the procedural side of the cases. The U.S. Chamber of Commerce, Competitive Enterprise Institute and Southeastern Legal foundation have asked the U.S. Circuit Court of Appeals for the District of Columbia to allow the challenges against the four EPA rules to be heard by the same panel of judges. Not only would this do away with repetitive briefs, but also inconsistent rulings. The plaintiffs also asked for the court to adopt new page limitations. The EPA responded to the motions filed by stating that reviewing the rules collectively would only lead to confusion, stating: "Petitioners' entire proposal is a recipe for chaos."

While many business groups agree that it would be procedurally beneficial to have the cases heard together, nineteen states have offered another solution. States such as California and New York have suggested that only the triggering and tailoring rules be heard collectively. Their filing states that this method takes into account the statutory construction and purpose of the Clean Air Act.

Sources:

1. Gabriel Nelson, Even Page Limits Are Disputed in Litigation Over EPA Greenhouse Gas Regs, Greenwire, Sept. 13, 2010, available at http://www.eenews.net/Greenwire/2010/09/13/archive/2?terms=even+page+limits.

2. Juliet Eilperin, EPA Lays Out Timetable for Regulation Greenhouse Gas Emissions, Wash. Post, Feb. 23, 2010, available at http://www.washingtonpost.com/wp-dyn/content/article/2010/02/22/AR2010022204829.html.

3. Robin Bravender, Pace of EPA's Clean Air Act Rulemakings Turns Heads, Draws Lawsuits, N.Y. Times, Sept. 14, 2010, available at http://www.nytimes.com/gwire/2010/09/14/14greenwire-pace-of-epas-clean-air-act-rulemakings-turns-h-75200.html.

4. Massachusetts v. EPA, 549 U.S. 497 (2007).

5. Motion for Coordination of Related Cases, Coal. for Responsible Regulation v. EPA, No. 09-1322 (D.C. Cir. Aug. 26, 2010) (consolidated with seventeen other motions).