These are frustrating times for people who want governments to take meaningful steps to limit the emissions of greenhouse gases that are changing the Earth’s climate and that now seriously threaten the continuity of the global climate that has been so hospitable to human society.
But late Friday afternoon, proponents of regulation scored a big victory when the United States Court of Appeals for the District of Columbia Circuit unanimously rejected a very aggressive and lavishly financed effort by major carbon polluters, right-wing policy groups, and conservative members of Congress to "stay" (or temporarily enjoin) the effectiveness of four EPA decisions that together establish an initial framework for regulation of greenhouse gas emissions under the Clean Air Act.
The three-judge panel that denied included one judge appointed by Ronald Reagan (Douglas H. Ginsburg), one appointed by Bill Clinton (David Tatel) and one appointed by George W. Bush (Janice Rogers Brown), and its decision was unanimous. It is not the end of the case – which will not be resolved for many months – but it means that the regulations will go into effect as scheduled on January 2, 2011, and that the Court was not very impressed with the challengers’ best arguments. (The cases are Coalition for Responsible Regulation v. EPA, No. 09-1322, and consolidated cases; with No. 10-1073 and consolidated cases, and No. 10-1092 – the order denying a stay is available here.
The four agency decisions at issue were all taken by EPA Administrator Lisa Perez Jackson, whose tenure has seen an 180-degree change from her Bush Administration predecessors on climate change. Whereas the Bush EPA fought any effort to address GHG under the Clean Air Act all the way to the Supreme Court, and then – after the Supreme Court’s April 2007 ruling in Massachusetts v. EPA that the agency had been wrong to deny that carbon dioxide is a "pollutant" under the Act and had given no valid reason to fail to regulate – managed to do essentially nothing for the remaining 20 months of the Bush’s second term.
In contrast, since assuming office, Obama’s EPA, while urging that Congress to enact a statute specifically addressing climate change, has devoted enormous energy to attacking climate change through available Clean Air Act authorities. Administrator Jackson reconsidered, and then reversed, the Bush Administration’s denial of California’s request for authority to run its own GHG standards for cars, and then it moved forward on crafting its own policies. It has not tried to bend the climate science, and it has proceeded despite enormous political pressure.
The agency decisions that are at issue in the case are:
• Endangerment Finding: Based upon a comprehensive review of climate science, the Administrator found that greenhouse gas emissions from motor vehicles endanger human health and the environment. This scientific determination is the basis for regulation under the motor vehicle provisions (as well as other provisions of the Act – based upon these same scientific decision, EPA will be adopting GHG controls under various other provisions of the Act)
• Greenhouse Gas Emissions Standards for Motor Vehicles These regulations impose limits on GHG emissions from new motor vehicles, accomplished by requiring greater fuel economy and lower emissions of GHGs from air conditioning systems.
• Timing and Tailoring Rules: These decisions conclude that greenhouse gases become "subject to regulation" within the meaning of the Clean Air Act’s provisions triggering regulation of stationary sources when the vehicle regulations take effect, and create thresholds to ensure that only very large sources of GHGs will initially be covered during the first few years of the regulation, in order to avoid undue burdens on state permitting authorities or on small sources.
The parties that moved for a stay included a shadowy group called the "Coalition for Responsible Regulation" funded by the Koch Brothers and other acolytes of dirty energy and extreme laissez-faire government; trade associations including the National Association of Manufacturers and the National Mining Association, the Competitive Enterprise Institute, Freedom Works and other right-wing policy groups, and members of Congress including Michele Bachmann, Steve King, Dana Rohrabacher and were supported by the U.S. Chamber of Commerce and the Utility Air Regulatory Group. They attack the climate science underlying EPA’s endangerment finding, and – critically – challenge EPA’s understanding that the Act’s provisions requiring control technologies on stationary sources would apply automatically once GHGs became "subject to regulation" for purposes of motor vehicles. The State of Texas also moved, claiming that the EPA’s decisions imposed impossible burdens that the state’s administrative machinery could not handle, and would result in an effective "moratorium" on construction of large new sources in Texas. The challengers retained dozens of high-priced lawyers, and spent massive sums on expert witnesses retained to claim that EPA's regulations would be unworkable or too expensive. Their statements to the press demonstrate that they thought they would get a stay, and strangle EPA's efforts in the cradle.
EPA’s defense of its actions is supported by a groups of 19 states led by California, Massachusetts, and New York and by many environmental groups including EDF, NRDC, and the Sierra Club. They pointed out that the science supporting the conclusion that greenhouse gas emissions are a serious danger the human health and the environment is overwhelming; that the plain language (and 30 years of consistent agency interpretation) support the conclusion that stationary sources are automatically covered once motor vehicle emissions of GHGs are regulated.
Friday’s decision is not the last word in the case – the court will receive briefing on the merits during 2011. And nobody – not EPA, or the states or environmental groups that support EPA’s decisions -- believes that EPA’s regulations will by themselves be enough to provide an effective brake on GHG emissions. Among other things, the stationary source component of the programs generally do not apply to existing stationary sources of emissions, including the coal-burning power plants that are the single larges source of emissions (unless the plants engage in upgrades that count as "modifications" under the Clean Air Act). And the coverage of EPA’s regulations is not nearly the broad, economy-wide program that would be necessary to control emisisons.
But the agency decisions in these cases are vitally important, and the denying the stay motions. They mean that EPA’s regulations can go into effect while the court decides the challenges to the particular decisions – and they suggest that the challengers will not have a difficult time winning on the merits. They will spur the development of new technologies to make motor vehicles cleaner and more fuel-efficient (indeed, the auto industry did not challenge any of the vehicle rules, and affirmatively opposed the stay motions, explaining that a stay would disrupt industry planning). For stationary sources, application of the Clean Air Act’s "best available control technology" standard will require use of cost-effective technologies to reduce emissions, and should provide a spur green tech and use of cleaner fuels. Perhaps most important, application of these programs will further undermine arguments that regulating greenhouse emissions is impossible.
Despite Friday’s court victory, the outlook for GHG controls remains daunting. The same interests that are fighting in court will turn to the new Congress, in which people like Joe Barton who have derided both EPA and basic climate science, will hold the reins of power and will control the appropriations process. EPA and the Administration will come under tremendous pressure to pull back, doubtless based upon claims that the economy requires that we continue unabated pollution. Against the massive and shrill forces that will pushing against it, the Obama Administration will need every possible bit of public support for its efforts to control climate change – and it will need to be reminded not to lose its resolve in the face of loud and vitriolic abuse from the far right and fossil fuel interests.
Friday’s victory is a major development in the tortured history of United States climate policy, and is a reminder of an area in which this Administration has brought a massive shift toward more enlightened policy. But keeping things moving forward will require sustained support from the public. We complain here a lot about ways in which this Democratic administration is not all that we want -- we need to give them credit when they do the right thing, especially when they are doing it in the face of massively financed, sophisticated opposition.