"Climate Change: The Year Ahead"

By Svend Brandt-Erichsen

and

Dustin Till

On January 2, 2011, EPA rules took effect requiring that air permits issued for new power plants and other major new and modified emission sources include limits on greenhouse gases (GHGs). The courts have refused to stay EPA’s rules, although the legal challenges to them are proceeding. Many in Congress say they want to block the rules, but they did not do so in the lame duck session, and those efforts face an uncertain future in the next Congress. The states, which actually issue the permits, are not all ready to implement GHG permitting. Texas has refused to cooperate with EPA, and EPA has responded with a move to force federal permitting for GHGs in that state effective January 2, 2011. Other states, some of which have joined in the legal challenges to the rules, are nevertheless working with EPA to implement them, in order to avoid a de facto moratorium on air permitting in their States.

EPA’s regulations, a response to the Supreme Court’s 2007 decision in Massachusetts v. EPA, began as a backstop and spur for Congressional action on comprehensive climate change legislation. But as that legislation foundered in the United States Senate earlier this year, the EPA rules emerged as the primary vehicle for national regulation of GHG emissions.

In addition to the GHG rules, other aspects of the laws governing climate change also remain in flux. In December, the Supreme Court agreed to hear an appeal of a circuit court ruling allowing plaintiffs to bring federal common law nuisance claims against greenhouse gas emitters. The Solicitor General of the United States asked the Supreme Court to accept review and overturn the Second Circuit’s decision.

I. The Year Ahead

A. Court Challenges to EPA’s GHG Regulations

In the upcoming year, the U.S. Court of Appeals for the District of Columbia will likely resolve a multitude of challenges to EPA’s greenhouse gas rules. At least 80 lawsuits have been filed by over 35 petitioners (including states, industry groups, environmental NGOs, and others) challenging the four rulemakings that form the backbone of EPA’s greenhouse gas regulatory program. The challenges have been consolidated into three principal proceedings:

1.Challenges to EPA’s determination that greenhouse gas emissions are “reasonably … anticipated to endanger human health and welfare” (the Endangerment Finding);

2.Challenges to a joint EPA/NHTSA rule limiting greenhouse gas limitations on new passenger cars and light trucks (the Tailpipe Rule); and

3.EPA’s rule to “tailor” the applicability of Clean Air Act standards for stationary sources for greenhouse gas emissions (the Tailoring Rule), and EPA’s reconsideration of when restrictions on greenhouse gas emissions from stationary sources would trigger (the Johnson Memo Reconsideration).

(Marten Law, 1/3/2010)