Tag Archives: EPA

The DC Circuit just released their opinion in Coalition for Responsible Regulation v. EPA. The court is upholding the EPA regulations on six greenhouse gases. Opinion is available here.

Some quick thoughts:
1) This is a per curiam decision.

2) Validity of Timing and Tailoring rule is not ruled on. It is dismissed because no petitioner has standing yet. This is a really interesting piece of the opinion.  See Coalition 73 – 81.  In case you aren’t familiar with the tailoring rule, if the EPA applied the new rules to every source, the costs would be absurd.  So, the EPA decided to start by applying the rules to the largest sources.  The court rules that this caused no actual injury, a requirement for standing.  The tailoring rule actually lowers the plaintiffs’ injuries, by applying the rule to only a subset of sources. “Without the Tailoring Rule, an even greater number of industry and state-owned sources would be subject to PSD and Title V, and state authorities would be overwhelmed with millions of additional permit applications . . . . If anything, vacature of the Tailoring Rule would significantly exacerbate Petitioners’ injuries.”

3) The DC Circuit does not believe that the Rule Against Absurdity should play a role in the early steps of rulemaking. It is not clear when exactly this rule of construction should apply though, but the court is clear that an endangerment finding should not be changed simply because the final rule may be “absurd.”

4) The court rules that the EPA was not acting irrationally based on the evidence in front of them when they essentially concluded that global warming is real and may cause harm. See Coalition at 28-32.

Predictions: I would be somewhat surprised if the Supreme Court takes cert.  But, they might feel the need to follow up on Mass. v. EPA, and the standing issue is pretty interesting so who knows. If you have any thoughts please post in the comments. I’ll probably link to some other coverage later.

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