Engineering News

US Courts to Have Growing Role in Climate Change Debate
October 8, 2010

A conservative legal foundation has filed a lawsuit against the U.S. Environmental Protection Agency for its work on greenhouse gases, joining a pool of more than 90 companies and trade associations that have sued the agency in the last year for its controversial greenhouse gas rules.

The most recent lawsuit, filed Thursday by the California-based Pacific Legal Foundation, helps to underscore the growing role the courts are likely to play in the national debate over climate change.

As the ability of the U.S. Congress to develop a national climate change policy becomes increasingly uncertain--at least for the next year or two--the debate over greenhouse gases has been shifting from the legislators to the courts.

"The extensive litigation attacking EPA's clean air initiatives are as much --if not more--about the broken politics of Washington D.C.," said Vickie Patton, deputy general counsel at the Environmental Defense Fund.

Because Congress has so far failed to enact a national policy, the EPA has elected to move forward with a series of policy documents and regulatory measures that aim to cut carbon dioxide emissions under the Clean Air Act.

Most, if not all, of the EPA's actions have been challenged in court.

The Pacific Legal Foundation is challenging the EPA's so-called endangerment finding, which concludes that greenhouse gases pose a risk to public health.

The EPA has used its endangerment finding, released in December 2009, as a foundation for subsequent actions it has taken on climate change. As a result, the finding has become one of the more hotly contested documents the EPA has released.

The Pacific Legal Foundation, for example, argues that the EPA acted illegally because it did not submit its findings to its Scientific Advisory Board for review.

"EPA violated its statutory duty--and the public trust--by recklessly making a sweeping judgment about [carbon dioxide] emissions without independent review by scientists of the highest caliber, as required by law," said the foundation's attorney, Ted Hadzi-Antich, in a statement.

The EPA has denied numerous requests to reconsider its endangerment finding.

A spokesman for the agency was not available for comment.

In addition to its endangerment finding, the EPA adopted a rule in April that set greenhouse gas standards for passenger cars and light trucks. In May, the EPA passed a "tailoring rule" that outlines which types of facilities have to obtain greenhouse gas permits.

More than 90 lawsuits challenging those actions have been filed with the U.S. Court of Appeals for the D.C. Circuit. Some of the petitioners have asked the court to suspend the EPA's rules until the litigation its decided.

The courts have already played a central role in the nation's climate change debate. In fact, the U.S. Supreme Court got the ball rolling on the regulation when it decided in 2007 that the EPA could regulate greenhouse gases under the Clean Air Act.

Dozens of lawsuits now under review by the D.C. Circuit court will only serve to amplify the importance of the courts in determining a climate change policy.

The courts' future role could be sidelined, however, if Congress makes progress in developing its own national policy or moves to suspend the EPA's work on greenhouse gases. Sen. Jay Rockefeller (D., W.Va.), for example, has introduced a bill to delay the EPA's work on the issue for two years and has already recruited dozens of supporters in the Senate.

"The wild card is what the change in leadership will be [after the November elections] and whether Republicans come in and line up the votes to preclude EPA from moving forward," said Kevin Holewinski, a partner with the law firm Jones Day.

Source: Dow Jones Newswires

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