A federal appeals court has turned away an effort to delay the planned implementation of the Obama administration’s regulations to limit carbon dioxide emissions from power plants.
The U.S. Court of Appeals for the District of Columbia Circuit rejected Wednesday two petitions to stay the rules filed by a coalition of 15 states and a coal mining company.
“The petitions [are] denied because petitioners have not satisfied the stringent standards that apply to petitions for extraordinary writs that seek to stay agency action,” the order said.
No announcement of the Clean Power Plan has yet appeared in the Federal Register, a step required by a law known as the Administrative Procedure Act before most federal regulations can take effect and by the Clean Air Act before it can be challenged in court.
President Barack Obama announced on Aug. 3 that the planned regulations are in final form. Although the Environmental Protection Agency has not publicly stated when the Clean Power Plan rule will be published, an agency website indicates that it is scheduled to go into effect on Nov. 13.
First proposed for new power plants in Sept. 2013 and for existing facilities in June 2014, the Clean Power Plan would require all power plants, including those that are newly constructed or modified, to limit the amount of carbon dioxide emissions produced when coal and natural gas is burned to produce electricity. The rule would generally delegate to the states the authority to develop and implement regulatory plans to achieve the reduction targets.
One of the petitions denied Wednesday was filed by the states of Alabama, Arkansas, Florida, Indiana, Kansas, Kentucky, Louisiana, Michigan, Nebraska, Ohio, Oklahoma, South Dakota, West Virginia, Wisconsin, and Wyoming. The other was filed by Peabody Energy Corporation.
Both petitions argued that the Clean Power Plan, which is based on a Clean Air Act section that relates to pollution from industrial facilities, is precluded by another section of that law relating to hazardous air pollutants. They also claimed that a delay of the rule is needed because there may be too little time between its publication by EPA and its effective date, which would put affected states and private entities in the position of having to begin work toward compliance before the legality of the regulation is decided by the federal courts.
“The final rule directs States to file plans or detailed “initial submittals” by Sept. 6, 2016,” Peabody’s motion said. “That is barely a year away and an eye-blink in the context of the multi-year planning horizon of energy suppliers, utilities, and private industry.”
The DC Circuit panel that issued Wednesday’s order did not comment on the merits of the arguments advanced by the states and Peabody. However, the same court ruled earlier this summer that the statute relied upon by the states and the coal company as a basis for blocking a federal rule before it takes effect does not affect the procedure for litigation specified by the Clean Air Act.
The U.S. Supreme Court has rejected the Obama administration’s effort to limit emissions of mercury and other toxic air pollutants from coal-fired power plants.
The 5-4 decision held that the Environmental Protection Agency should have considered costs the regulations may impose on industry.
“It is not rational, never mind ‘appropriate,’ to impose billions of dollars in economic costs in return for a few dollars in health or environmental benefits,” Justice Antonin Scalia wrote for the majority.
The regulation was issued under a section of the Clean Air Act that demands that it be “appropriate and necessary.” The federal appeals court in Washington, D.C. had ruled that this clause of the CAA does not require EPA to consider compliance costs at the stage of deciding whether to regulate.
EPA has worked to impose limits on mercury emissions from electrical facilities for more than two decades. The agency decided in Dec. 2000 that the CAA standard of “appropriate and necessary” compelled regulation of power plant mercury emissions.
A predecessor to the current regulation, issued by President George W. Bush’s administration in Mar. 2005, was struck down by a federal appeals court in 2008.
The regulations at issue before the Supreme Court, formally known as the Mercury and Air Toxics Standards, were finalized in February 2012.
The agency argued that the regulation would produce public health benefits worth tens of billions of dollars.
The decision, which was supported by the five justices appointed by Republican Presidents, does not eliminate the legal effectiveness of the regulations. Instead, the Court remanded the regulation to the agency, which basically means that EPA must reconsider it.
The case is Michigan v. Environmental Protection Agency, No. 14-46.
The fate of a contentious U.S. Environmental Protection Agency rule limiting mercury emissions from electric power plants will be decided by the nation’s highest court sometime in the next few days in a case that could force EPA to factor in regulatory compliance costs when deciding if an air pollutant is harmful to human health.
The case turns on the question when EPA must consider industry’s compliance costs in the process of imposing emission limits on the category of air pollutants that are considered hazardous to human health and the environment.
Section 112 of the Clean Air Act imposes the requirement of a so-called “air toxics determination” before the agency can set limits on the discharge of those toxic pollutants to the atmosphere.
The statute provides that EPA must “list” all sources of air pollutants that “present a threat of adverse effects to human health or the environment” that “warrant regulation under this section.” Once EPA lists a source of such a hazardous air pollutant, the agency is required to set standards that achieve the “maximum degree of reduction in emissions,” considering factors including compliance costs, energy requirements, and non-emission related health and environmental impacts.
The administration of former President Bill Clinton decided in Dec. 2000 that regulation of mercury, particulates, and toxic gases from electric power plants is necessary to protect public health and the environment. The subsequent administration sought to alter that determination, but its effort to do so was rejected by a federal appeals court in 2008.
The Obama administration proceeded with development of a so-called Mercury Air Toxics rule and finalized it in Feb. 2012.
According to a fact sheet prepared by EPA, the rule would likely save up to 11,000 lives per year. About 1,400 coal-and oil-fired power plants would be affected.
During the process of finalizing the MACT rule, EPA evaluated the costs that electric utilities may incur in order to comply with the 2012 emission limits. The agency determined that the total annual costs of compliance would be about $9.6 billion. That compares to yearly public health benefits that range from $37 billion to $90 billion.
Lawyers for industry and some state governments challenged the rule in court, arguing that EPA must consider industry’s costs of compliance with emission limits before deciding that regulation of those emissions is necessary.
They lost before the U.S. Court of Appeals for the District of Columbia Circuit, which ruled in 2014 that EPA had properly considered costs at the stage of the process at which the emission limits were set.
Only one member of the three-judge panel that heard the case at the appeals court level, an appointee of former President George W. Bush, agreed with the industry lawyers’ argument.
“It’s just kind of inconceivable that Congress meant for EPA to do a cost-benefit analysis at the decision-to-regulate stage,” Karl S. Coplan, a professor of law at Pace University Law School, said. “It’s a technology-based limitation, not a health-based limit. EPA must consider costs at the stage of what the limit must be. There’s no point in making EPA consider costs at the should-we-regulate stage and then again at the what-the-limit-should-be stage.”
The Supreme Court has generally required federal courts to defer to agency interpretations of the statutes they administer if the language at issue is ambiguous and the agency’s reading is reasonable. This approach to deciding cases involving challenges to agency action, known as the Chevron doctrine, is a cornerstone of administrative law.
Coplan does not think that the MACT case before is likely to induce a majority of the justices to abandon the doctrine altogether.
“I think there are some justices that are uncomfortable with it,” he said. “But their discomfort seems to depend on which side it comes up. It’s fair to say that Justice Scalia is one of those who has expressed skepticism about it in the past.”
If the Court does not turn away from the Chevron doctrine, then the only rationale it would have to reject the MACT rule would be would be that the text of the Clean Air Act that appear to foreclose consideration of costs at the stage of deciding whether a pollutant is dangerous to human health and the environment actually does require the agency to consider such costs then.
“The finding by EPA that regulation of electrical utility industry emissions is appropriate was made many years ago and the practical effect of this decision, depending on how it comes out, could be a real setback for EPA’s regulation of coal-fired power plants and for cleaning them up,” Coplan said.
The Supreme Court heard oral arguments in the case on March 25.
The U.S. Environmental Protection Agency has decided to move forward with rules that could reduce methane emissions from oil and gas exploration wells and associated equipment by up to 45 percent by 2025.
The new regulations are expected to be proposed this summer and to be finalized in 2016.
“Achieving the Administration’s goal would save up to 180 billion cubic feet of natural gas in 2025, enough to heat more than 2 million homes for a year and continue to support businesses that manufacture and sell cost-effective technologies to identify, quantify, and reduce methane emissions,” a statement by the White House said.
The Wednesday announcement from the White House also said that the new regulations would limit volatile organic compound emissions from oil and gas infrastructure.
The new regulation, which is expected to be proposed during the coming summer, would apply only to new or altered oil and gas exploration or extraction systems, at least initially.
The White House said that it would encourage the oil and gas industry to voluntarily reduce emissions from existing oil and gas wells and associated pumps, booster and compressor stations, and well site delivery systems.
“If the reported target is correct, and if there’s a solid program offered to achieve it, then this is indeed a landmark moment,” Fred Krupp, president of Environmental Defense Fund, said in a statement released Tuesday after the New York Times reported the administration’s planned announcement. “Methane pollution is both an environmental problem and a needless waste of energy, and we need responsible oversight of an issue that industry has failed to address.”
Administration efforts to limit methane emissions from oil and gas infrastructure on private lands are not the only planned federal programs aimed at cutting methane accumulation in the atmosphere. President Barack Obama called for inter-agency efforts to limit methane emissions in his March 2014 Climate Action Plan.
The U.S. Department of Interior’s Bureau of Land Management will likely propose one of the more impactful of those efforts this spring, a regulation that would limit methane emissions by oil and gas producers operating on U.S. public lands under its control.
Methane emissions from oil and gas facilities have declined by about 11 percent since 1990, according to the U.S. government’s 2014 greenhouse gas emissions inventory, but emissions of the compound have trended upward in recent years. Moreover, a paper published last year in Science suggested that such emissions may be under-estimated by as much as 50 percent.
The U.S. Supreme Court returns to work next month and among the cases vying for the justices’ attention is a dispute over the George W. Bush administration’s decision to tighten limits on ozone emissions to the atmosphere.
The Environmental Protection Agency’s March 2008 change to the primary national ambient air quality standard for ozone lowered it by five parts per billion. The agency also set the secondary NAAQS at the same level as the primary NAAQS.
Opponents of that move, who include an industry advocacy organization called Utility Air Regulatory Group and the state of Mississippi, argue in their petition for certiorari that the Environmental Protection Agency set the new primary and secondary NAAQS at a level lower than necessary to protect public health.
Primary and secondary NAAQS for ozone, as well as certain other pollutants, are authorized by the Clean Air Act. A primary NAAQS aims to protect public health, while a secondary NAAQS is intended to advance public welfare.
Both NAAQS for ozone were challenged in the federal court of appeals in Washington, D.C.
The court held last year that EPA acted reasonably in making the change to the primary ozone NAAQS. The three appeals court judges, who ruled unanimously, summarized the scientific basis for the agency’s action:
Of particular relevance here, EPA emphasized new clinical studies, including human exposure studies, showing respiratory effects at ozone levels below 0.08 ppm. EPA also cited new epidemiological evidence suggesting associations between “serious morbidity outcomes” and ozone exposure at levels below 0.08 ppm, as well as risk assessments estimating the effects of various levels of ozone on the population.
The judges, who issued an unsigned opinion, ridiculed industry’s argument that EPA must presume a prior NAAQS to be valid, comparing that assertion to a “funhouse.”
The panel explained that a 2001 Supreme Court decision that requires EPA to set a “requisite” NAAQS, meaning one that is neither too onerous nor to lenient, also allows the agency to take into account scientific uncertainty.
Determining what is “requisite” to protect the “public health” with an “adequate” margin of safety may indeed require a contextual assessment of acceptable risk. Such is the nature of policy. But that does not mean the initial assessment is sacrosanct and remains the governing standard until every aspect of it is undermined. Every time EPA reviews a NAAQS, it (presumably) does so against contemporary policy judgments and the existing corpus of scientific knowledge. It would therefore make no sense to give prior NAAQS the sort of presumptive validity Mississippi insists upon.
Environmentalists, who argued along with a coalition of states, municipalities, and public health organizations that the ozone primary NAAQS was not stringent enough, fared no better before the appeals court judges. They asserted that EPA did not consider health impacts of a standard below 0.075 ppm and that the agency’s 2008 regulation did not include a necessary “margin of safety.”
The judges were not swayed.
EPA finds itself in a situation reminiscent of Goldilocks and the Three Bears. On one side, Mississippi argued that EPA is too stringent with its ozone NAAQS; on the other side, the governmental and environmental petitioners argue that the NAAQS is too lax. But unlike Goldilocks, this court cannot demand that EPA get things “just right.”
One study relied upon by the environmental advocates and their allies had been rejected by EPA on grounds that the sample size was too small; the court found this to be a reasonable decision. The panel similarly turned aside arguments that EPA should have placed more weight on epidemiological studies and that the agency did not act in a manner consist with internal risk assessments.
As for a margin of safety, the D.C. Circuit panel held that EPA has discretion to build that into the NAAQS itself.
The court did agree with arguments that EPA’s 2008 change to the ozone regulation established the secondary NAAQS at too high of a level.
The petition for certiorari pending before the Supreme Court will be granted if four of the nine justices agree to hear the case. The justices are likely to consider the petition at their Sept. 29 conference.
The case is Utility Air Regulatory Group v. Environmental Protection Agency, No. 13-1235.
Before the 2008 regulation, EPA had last changed the ozone NAAQS in 1997. That modification was also subjected to a multi-year litigation journey, being finally upheld by the U.S. Court of Appeals for the District of Columbia Circuit in 2002.
EPA must review NAAQS every five years. If justified by current scientific knowledge relating to public health and welfare impacts of emissions, the agency must change them accordingly.
A federal appeals court has decided not to reconsider a decision holding that environmentalists cannot mount a federal court challenge to a Washington agency’s decision not to force the state’s oil refineries to reduce their greenhouse gas emissions.
The order of the U.S. Court of Appeals for the Ninth Circuit in Washington Environmental Council v. Bellon rejected a request by a judge on the court that the opinion be subjected to en banc review.
At issue in the case is whether the Washington State Department of Ecology, the Evergreen State’s air quality regulator, must force oil refineries to adopt reasonably available control technology to limit greenhouse gas emissions.
In 2011 a federal district judge ruled that WSDE must do so. Last autumn a panel of judges on the San Francisco-based appeals court vacated that ruling, holding that the challengers to WSDE’s inaction lack standing to file a complaint about it in federal court.
The three-judge panel’s decision was not unanimous. A majority led by El Segundo, Calif.-based judge Milan D. Smith, Jr. said that the U.S. Supreme Court’s decision in Lujan v. Defenders of Wildlife precluded the lawsuit.
In Lujan, a plurality of the justices concluded that the U.S. Constitution’s standing requirement demands that plaintiffs challenging regulatory inaction show that they are both directly impacted by the government’s choice and that any court decision in their favor be certain to redress the harm they suffer.
Smith, an appointee of former President George W. Bush, wrote in an opinion concurring in the Feb. 3 order denying en banc review of his Oct. 2013 decision that the restrictive nature of the Lujan case compelled the outcome in Bellon because the environmental group plaintiffs in the dispute provided no evidence that imposition of the regulations they sought would result in lower greenhouse gas emissions.
Three dissenters, led by Seattle-based judge Ronald Gould, disagreed, arguing that the 2007 U.S. Supreme Court decision in Massachusetts v. Environmental Protection Agency compelled a finding that the plaintiffs had standing.
“The majority’s argument -whose logical conclusion is that non-state entities categorically lack standing to use the Clean Air Act to compel state action on global warming – disregards Supreme Court precedent, makes bad law for our circuit, and harms the public,” Gould wrote for himself and fellow judges Kim Wardlaw and Richard Paez.
Gould, Wardlaw, and Paez were appointed to the Ninth Circuit by former President William J. Clinton.
Gould explained that the Massachusetts case has to be read in conjunction with Lujan and that, in that landmark 2007 decision, the justices held that a state’s regulatory response does not have to be likely to solve an entire policy problem in order for plaintiffs to show that a court order would deal with the harms they claim will result from the inaction:
“The Supreme Court’s reasoning endorsed the principle that causation and redressability exist, independent of sovereign status, when some incremental damage is sought to be avoided,” Gould wrote. “Accordingly, Massachusetts v. EPA also confers standing upon individuals seeking to induce state action to protect the environment.”
Smith dismissed that point, asserting that the state plaintiff in Massachusetts v. Environmental Protection Agency was allowed to invoke the jurisdiction of a federal court only because it is a sovereign entity and that the harm it claimed was procedural, as opposed to the increased risk of global warming claimed by the plaintiffs in the Ninth Circuit dispute.
In the Ninth Circuit, en banc review involves reconsideration of a decision by a panel of 11 active judges on the court. For it to be granted, a majority of the court’s active judges must agree.
Janette Brimmer, a lawyer with Earthjustice who represents the environmental group plaintiffs in the case, said that her clients have not yet determined whether to ask the Supreme Court to review the Ninth Circuit’s decision.
Her clients’ immediate objective looks like it will be achieved notwithstanding the appeals court’s holding that they cannot challenge the specific regulatory decision by the Washington State Department of Ecology. The plaintiffs in the Bellon case sought to convince the WSDE to impose reasonably available control technology requirements (RACT), a technology-forcing tool mandated by the federal Clean Air Act and the state statutory and administrative programs that enforce it, on Evergreen State oil refineries.
“The state has repeatedly admitted that it believes it has an obligation to do this under state law (even though it argued it was not compelled under a federal SIP enforcement) and so we will be following up on that acknowledgement,” Brimmer said in an email message.
Brimmer was referring to a state implementation plan, the principal means by which emission limits on pollutants regulated by the federal Clean Air Act are enforced.
Greenhouse gases are not yet subject to a national ambient air quality standard imposed by the U.S. Environmental Protection Agency, but a 1976 U.S Supreme Court decision held that state implementation plans can regulate pollutants that are not subject to the national emission limits represented by a NAAQS.
Camille St. Onge, a spokesperson for WSDE, confirmed that a rule that attempts to impose an obligation on the state’s refineries to control greenhouse gas emissions is in development.
“We finished our formal comment period,” St. Onge said.
She explained that WSDE views the rulemaking as being supported not only by federal and state statute, but also by the earlier decision in the Bellon case by a Seattle-based federal district judge.
“We do have authority under our state law,” she said. “I would think that we’re following the court order. We also have authority under the Clean Air Act.”
The Bellon case and WSDE’s proposed RACT rule focus on five refineries in Washington. Those refineries are the second-largest stationary source of greenhouse gas pollution in the state.
A panel of Republican-appointed judges on the U.S. Court of Appeals for the Ninth Circuit ruled Oct. 17 that environmentalists lack standing to challenge a state’s failure to invoke the Clean Air Act to regulate oil refinery greenhouse gas emissions. The case involves an effort by environmentalists to force Washington to develop and implement technology standards that would result in the reduced GHG pollution. Washington’s state implementation plan, the program for air pollution control required by the Clean Air Act, does not reach greenhouse gases. The environmentalists won in the federal district court. The appeals court panel’s holding rests on an assertion that the plaintiffs were unable to show a link between the harm they suffer from the emissions and the industrial activities, and consequent emissions, by the regulated entities. In other words, the panel decided that there is no legally recognizable connection between the conceded emissions and the generally accepted environmental damage they do. “[A]ttempting to establish a causal nexus in this case may be a particularly challenging task,” wrote the opinion’s author, Judge Milan D. Smith.
This is so because there is a natural disjunction between [p]laintiffs’ localized injuries and the greenhouse effect. Greenhouse gases, once emitted from a specific source, quickly mix and disperse in the global atmosphere and have a long atmospheric lifetime. Current research on how greenhouse gases influence global climate change has focused on the cumulative environmental effects from aggregate regional or global sources. But there is limited scientific capability in assessing, detecting, or measuring the relationship between a certain GHG emission source and localized climate impacts in a given region.
Smith cited a May 2008 memorandum from the director of the U.S. Geological Survey to the U.S. Fish and Wildlife Service for this conclusion. Richard Frank, a professor of law at the University of California at Davis and an expert on environmental law, said that Smith’s point is a departure from the traditional way in which courts approach pollution problems. “The courts have pretty easily and readily dismissed the notion that one of the polluters should not be held responsible and the party could not go after one bad actor in court because of the idea that everyone is doing it,” he explained. Janette Brimmer, an Earthjustice lawyer who represented the environmental group plaintiffs in the case, said she thought the opinion will make it harder for public interest plaintiffs to challenge regulatory inaction in court. “There’s no doubt this decision raises the bar, and raises it pretty darn high,” she said. Smith’s opinion relied on a narrow reading of a 2007 holding of the U.S. Supreme Court. In that case, called Massachusetts v. Environmental Protection Agency, the justices held that Massachusetts had standing to challenge EPA’s failure to regulate greenhouse gases. Smith wrote that the ability of the states in the Massachusetts v. Environmental Protection Agency case to secure standing in a challenge focused on failure to regulate rested solely on those states’ status as sovereigns, a status environmentalists do not have. This reading of the Massachusetts case, Frank said, is too narrow. “There were a lot of people that, when the Massachusetts decision was issued in 2007, thought this opened the courthouse door at least a little bit to a lot of different parties who sought to bring climate change actions,” he said. The Supreme Court’s opinion in Massachusetts v. Environmental Protection Agency may not have even been solely premised on a state’s status as a sovereign entity within the union. The court did not hold in that case that Massachusetts’ co-plaintiffs lacked standing to challenge the Bush administration’s refusal to use the tools provided by the Clean Air Act to limit greenhouse gas emissions. In fact, the court said that Congress’ decision to include a citizen suit provision in the Clean Air Act meant that sovereign entities are not the only parties who can sue under the law. “ When a litigant is vested with a procedural right, that litigant has standing if there is some possibility that the requested relief will prompt the injury-causing party to reconsider the decision that allegedly harmed the litigant,” he wrote. Nor is the other pillar of Smith’s rejection of standing for the environmental plaintiffs necessarily well-grounded in the guidance offered by the justices. Smith’s opinion for the Ninth Circuit panel also asserted that, in contrast to the higher percentage of worldwide greenhouse gas emissions at issue in the Massachusetts case, the Washington refineries account for only five percent of warming pollution emanating from the sources just in that single state. Stevens’ opinion in the Massachusetts case dismissed a similar argument against standing. “[The] argument rests on the erroneous assumption that a small incremental step, because it is incremental, can never be attacked in a federal judicial forum,” Stevens wrote. “Yet accepting that premise would doom most challenges to regulatory action. Agencies, like legislatures, do not generally resolve massive problems in one fell regulatory swoop. In fact, Frank said, another federal appeals court has applied the Massachusetts decision to a question of standing very similar to that in the Washington case and come out exactly opposite to the Ninth Circuit panel. “There’s a decision in the Second Circuit, based in New York, in American Electric Power v. Connecticut that I think is pretty diametrically opposed to this,” he said. One explanation for the Ninth Circuit decision may be judicial discomfort with the notion that courts should help fashion a societal response to climate change. At oral argument in the Washington case, one of the judges on the panel indicated that he believed that the courts should discourage litigation as a method for dealing with it. “Perhaps carbon dioxide causes harm, we know poverty causes harm, so why shouldn’t it be a policy question decided Congressionally rather than an inch-by-inch incremental series of injunctions by district courts, each of which has no practical effect, but in your theory incrementally adds up to an effect?,” Judge Andrew Kleinfeld, an Alaska-based member of the panel that decided the case, asked at oral argument July 10. Frank explained that this response may be based on a view that climate change is too complex for courts. “You’re talking about a global problem,” he said. “One unit of pollution emitted in Anacortes, Washington does not have more or less effect than a unit of pollution discharged in Beijing, Paris, or Johannesburg.” The federal appeals court also held that, even if the plaintiffs had shown causality between the refinery emissions and environmental damage to Washington lands and waters and the atmosphere, a RACT requirement would not make any difference. “Because the effect of collective emissions from the [o]il [r]efineries on global climate change is ‘scientifically indiscernible,’ [p]laintiffs’ injuries are likely to continue unabated even if the [o]il [r]efineries have RACT controls,” Smith wrote. Smith’s opinion was joined by Kleinfeld and circuit judge N. Randy Smith. Smith was appointed to the bench by former President George W. Bush in 2006, while Smith was appointed by Bush in 2007. Kleinfeld was appointed by President George H.W. Bush in 1991. The case is Washington Environmental Council v. Bellon, No. 12-35323.