EPA lawsuits face tough road ahead

Posted Feb. 24, 2010

Recently filed lawsuits and Petitions for Reconsideration challenging the U.S. EPA's endangerment finding on GHGs have the support of many Congressional members and industry groups, but face a steep uphill battle toward legal or agency acceptance.

More than 40 entities have signed on requests submitted to the EPA, asking that the agency review its finding that GHGs pose a threat to human health and the environment. (See "Dozens request EPA amend GHG finding.") The petitions state that recently leaked emails exchanged between scientists working for the U.N. Intergovernmental Panel on Climate Change prove that data supplied by the IPCC for the EPA's endangerment finding research was biased and should serve as the basis for a thorough review of the EPA's finding. However, EPA Administrator Lisa Jackson testified at a recent Senate environment committee hearing that she stands by the IPCC research and has no plans to review the endangerment finding.

"I don't agree that IPCC has been totally discredited in anyway," Jackson said. "I do not defend the conduct of those who sent those emails [but] numerous groups have agreed with the IPCC findings. IPCC has said it needs to review its scientists, but stands by its findings." Following further questioning regarding the validity of the IPCC research, Jackson said she agrees that the leaked emails and other issues deserve further consideration, but she has yet to be presented with any information that would dispute the EPA's endangerment finding. Jackson asserted that errors which have been found in IPCC reports relate to international locales, such as the Himalayas, and don't affect the portion of data that the EPA reviewed prior to issuing its determination.

It is also believed that challenges to the EPA's endangerment finding filed in the U.S. Court of Appeals for the District of Columbia will be dismissed without consideration by the court. (Read "Endangerment finding in legal danger.") Graham Noyes, of-counsel with Stoel Rives LLP, specializing in renewable energy and carbon monetization, said the 2007 ruling issued by the U.S. Supreme Court in Massachusetts vs. EPA sets a firm basis for the EPA to act upon and will be difficult to argue. "It's hard to see how they are likely to be successful, because the EPA was told what to do and then it did what it was told, which was to go through this proceeding [the endangerment finding]," Noyes said. "In order for the petitioners to succeed, they're going to have to show very significant proof to the court that the EPA finding was arbitrary, capricious or an abuse of discretion or otherwise illegal. Those are hard standards."

Somewhat ironically, the court in which the latest legal challenges have been filed is the same court that initially ruled that the EPA does not have the authority under the Clean Air Act to regulate GHGs, which was eventually overturned by the Supreme Court in Massachusetts vs. EPA. Noyes said it is rare that a court will ever disagree with its reviewing court, which is what would have to happen in order for the current lawsuits to proceed. "I'd be surprised if the court took this up and it became a substantive case," Noyes said. "But we'll continue to see petitions and we'll continue to see legal challenges. Because it has such a major financial impact, the different interests that think they'll suffer economically if some kind of EPA system is set up will put significant resources into fighting it in different ways. As much in the court of public opinion as in the legal system."

Noyes said he believes that the EPA will continue to move ahead with its regulatory plans, which could ultimately result in legislation as industry groups realize that the EPA can't be stopped and shift their focus toward passing legislation as a better alternative to EPA regulation.

The EPA readily defends its endangerment finding and its legal right to regulate GHGs. A statement released by the EPA referred to the Supreme Court ruling as the reason for its actions and said it conducted a comprehensive review of the soundest available science before reaching its conclusion. "That science came from an array of highly respected, peer-reviewed sources from both within the United States and across the globe, and took into consideration hundreds of thousands of comments from members of the public, which were addressed in the finding," an EPA representative said in a statement on behalf of the agency. "The conclusion: the scientific evidence of climate change is overwhelming and GHGs pose a real threat to the American people.

"The question of the science is settled," the EPA statement continued. "EPA is proceeding with common sense measures that are helping to protect Americans from this threat while moving America into a leadership position in the 21st century green economy. Unfortunately, special interests and other defenders of the status quo are now turning to the courts in an attempt to stall progress, with the added effect, if they are successful, of halting the creation of millions of new jobs. The EPA is confident the finding will withstand legal challenge."