Tuesday, June 26, 2012

DC Circuit Rejects Challenges to EPA's Greenhouse Gas Rules

The Court (in a per curium opinion appearing below) rejected on the merits challenges to the "endangerment finding" (see here) and the "tailpipe rule" (see here), and, somewhat more surprisingly, it held that the plaintiffs did not have standing to challenge the tailoring rule (see here).

As I've written previously (here), the tailoring rule stands on pretty shaky legal ground under the Clean Air Act because it actually ignores plain statutory language (application of which would lead to much more stringent and expensive regulatory standards) to achieve its regulatory end. However, the court avoided dealing with the issue on the merits by finding that the petitioners lacked standing based on their failure to establish any injury from the "tailoring rule," which, as the court points out, actually reduces the regulatory burden they otherwise would have sustained. Given that, it is difficult to see what potential plaintiff might satisfy standing requirements to challenge the "tailoring rule" on the merits. Perhaps environmental groups, arguing for a more restrictive set of regulations than EPA has provided pursuant to its rule; but they seem unlikely to bring such a suit because, if the "tailoring rule" is thrown out on the merits, the EPA, even under a Democratic president, would be unlikely to replace it with something more to their liking. (On the other hand, environmentalists sometimes seem to be willing to sacrifice marginal environmental improvements in their quest for what Prof. Lawrence Friedman has labeled "total justice." Witness their challenge to AB 32 in California). The various legal scholars over at Legal Planet suggest (here) that some businesses that are subject to regulation under the regulation may be able to get standing arguing that it puts them at a competitive disadvantage to other firms that are just under the emission floor for regulatory application. This seems plausible.

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