As predicted, the D.C. Circuit upheld yesterday the EPA’s finding that “greenhouse gas,” including carbon dioxide, is an “air pollutant” and the agency’s succeeding regulation of tailpipe emissions and stationary sources of greenhouse gas [pdf].
The court first held that the agency was right to base its Endangerment Finding on scientific judgment, as specified by the Clean Air Act and as required by the Supreme Court in Massachusetts v. EPA, rather than the policy considerations advanced by petitioners. The agency properly relied on several peer-reviewed studies as evidence supporting its own scientific judgment. The court made quick work of the objection that some of those studies were syntheses of prior work rather than the result of independent research:
Even individual studies and research papers often synthesize
past work in an area and then build upon it. This is how science
works. EPA is not required to re-prove the existence of the atom
every time it approaches a scientific question.
Citing the “extreme degree of deference” that the court accords an agency’s scientific judgment within the area of its expertise, the court upheld the EPA’s conclusion that “the ‘root cause’ of the recently observed climate change is ‘very likely’ the observed increase in anthropogenic greenhouse gas emissions.” The uncertainty of the evidence behind this conclusion was no reason to strike it down where the uncertainty was not “so profound” as to preclude “reasoned judgment”: “EPA need not provide ‘rigorous step-by-step proof of cause and effect” to support an endangerment finding.”
The court held that the EPA’s Tailpipe Rule was based on a correct interpretation of the Clean Air Act, and the court held that none of the petitioners had standing to challenge the Timing and Tailoring rules which lessened the impact the Tailpipe Rule would have otherwise had on industrial polluters.
- Lawrence Hurley, Appeals Court Upholds EPA Emission Rules, E&E Publishing (June 26, 2012) (“In a significant legal victory for the Obama administration, a federal appeals court today unanimously upheld U.S. EPA’s landmark greenhouse gas regulations.”);
- Prevailing Dissenters in Massachusetts v. EPA to Decide New Greenhouse Gas Challenge, D.C. Circuit Review (Nov. 4, 2011) (“At least for Judge Tatel, approval of the EPA’s endangerment finding appears to be a foregone conclusion.”);
- Glenn Sugameli, The Other Health Case: D.C. Circuit Judges Reject Challenges to EPA Rules on Greenhouse Gases, ACSblog (July 6, 2012) (“Th[e] importance of the issues in Coalition for Responsible Regulation v. Environmental Protection Agency is augmented by synergistic factors. These include: (1) the court that decided them; (2) the judges who joined the unsigned per curiam opinion; (3) the high likelihood that their ruling is the final judicial word; (4) the very strong language the judges used; and (5) the decision’s impact in confirming the scientific facts of climate change. . . . According to the D.C. Circuit Review, ‘the most fundamental reason’ for the Circuit’s recent low en banc rate of only one case in both the current term and the previous term ‘is the dwindling number of active judges eligible to vote for rehearing.’ “).