Greenhouse Gas Case Sparks Double Dissent from Denial of Rehearing En Banc

Today the D.C. Circuit denied rehearing en banc in the Greenhouse Gas case.  No surprise there.  The panel decision upheld the EPA’s finding that carbon dioxide is a pollutant and upheld the agency’s regulation of CO2 emissions. The original panelists signed Chief Judge Sentelle’s opinion concurring in the denial of rehearing, and Judges Brown and Kavanaugh each dissented.  Today’s dissenters are always worth a read, and these offerings are no exception.

Judge Brown begins with a bit of autobiography:

In the summer of 1974, while waiting to start classes at UCLA, I was lucky enough to obtain a summer job house sitting in the pleasant, upscale neighborhood of Pasadena. Known mostly for its Rose Parade and Rose Bowl, Pasadena is one of the more scenic exurbs of Los Angeles. I inhabited a sparsely furnished, modest-but-pricey bungalow set among the lush landscape typical of southern California. This is a place where Birds of Paradise grow ten feet tall and the magenta blossoms of Bougainvillea fall like lavish draperies from redwood garden trellises. After staying in the house more than a month and spending a restless night listening to the agitated thrashings of the jacaranda trees in a fitful wind, I stumbled bleary-eyed into the kitchen, looked out the window, and stopped — utterly dumbfounded. There — looking like it was but a few feet beyond the back fence — stood a mountain. Not a foothill. Not an unobtrusive mesa. A mountain! Closer inspection revealed not a lone majestic peak, but a whole mountain range I later identified as the San Gabriels. In those days, the air in the Los Angeles basin was so thick with smog that a mountain, or even a nearby mountain range, could simply disappear.

Although the Los Angeles basin was among the most notorious examples of the phenomenon, it was by no means unique and certainly not the worst. It was this crisis of ambient air quality that precipitated the enactment of the Clean Air Act (CAA). But as the CAA’s history, language, and structure make clear, Congress never intended the Act to serve as an environmental cure-all. It was targeted legislation designed to remedy a particular wrong: the harmful direct effects of poisoned air on human beings and their local environs. This is what Congress understood as “air pollution which may reasonably be anticipated to endanger public health” in the tailpipe emissions provision, 42 U.S.C. § 7521(a)(1). The Supreme Court in Massachusetts v. EPA, 549 U.S. 497 (2007), however, concluded otherwise. In dicta too suggestive to ignore, the Court implicitly assumed that climate change could provide the basis for an endangerment finding in the tailpipe context. Bound as I am by Massachusetts, I reluctantly concur with the Panel’s determination that EPA may regulate GHGs in tailpipe emissions. But I do not choose to go quietly.

Judge Brown’s dissent ends with a wink at the per curiam panel opinion’s quotation of Schoolhouse Rock, but she finds another song more apt:

In denying rehearing en banc, this Court has read Massachusetts to its illogical ends and it is American industry that will have to pay. That this Court did so is unsurprising, but certainly not fated. Massachusetts does not compel this outcome for the [Prevention of Significant Deterioration] and Title V provisions. Had this Court interrogated its own assumptions and yielded not to Massachusetts’s telos but sound constitutional principles, it would have found that the matter properly belongs before Congress, not courts or agencies. As Schoolhouse Rock long ago explained:

Ring one, Executive,
Two is Legislative, that’s Congress.
Ring three, Judiciary.
See it’s kind of like my circus, circus.

And what a circus it is.

Judge Kavanaugh’s dissent, though somewhat less personal, is no less punchy.  Here is an excerpt:

In an unusual twist, EPA openly acknowledged the unreasonableness – indeed, the absurdity – caused by its interpretation of the statute. If the Prevention of Significant Deterioration program were interpreted to require preconstruction permits based on emissions of greenhouse gases, EPA candidly stated that the result would be “so contrary to what Congress had in mind – and that in fact so undermines what Congress attempted to accomplish with the PSD requirements – that it should be avoided under the ‘absurd results’ doctrine.”

But faced with those absurd consequences from the broader interpretation of the statute, EPA surprisingly did not choose the seemingly obvious option of adopting the narrower and more sensible interpretation of the term “air pollutant” for the Prevention of Significant Deterioration statute – the  interpretation limited to NAAQS air pollutants. Instead, EPA plowed ahead with the broader interpretation [any harmful airborne compound, including carbon dioxide]. And then, to try to deal with the absurd repercussions of that interpretation for the Prevention of Significant Deterioration statute, EPA re-wrote the very specific 250-ton trigger in the permitting requirement of the statute, unilaterally raising that trigger for greenhouse gas emissions from 250 tons to 100,000 tons – a 400-fold increase. EPA believed that re-writing the statute’s permitting-triggers provision in this way would reduce the number of facilities that would require pre-construction permits and thereby “tailor” the absurdity – that is, alleviate some of the absurdity caused by interpreting “air pollutant” to cover greenhouse gases.

This is a very strange way to interpret a statute.

* * *

[T]he ultimate clincher in this case is one simple point: EPA
chose an admittedly absurd reading over a perfectly natural
reading of the relevant statutory text. An agency cannot do

* * *

To be sure, courts must be wary of undue interference with an agency’s action implementing its statutory responsibilities. But at the same time, undue deference or abdication to an agency carries its own systemic costs. If a court mistakenly allows an agency’s transgression of statutory limits, then we green-light a significant shift of power from the Legislative Branch to the Executive Branch. The Framers of the Constitution did not grant the Executive Branch the authority to set economic and social policy as it sees fit. Rather, the Framers gave Congress, along with the President, that legislative role (subject to constitutional limits), and they assigned the Executive Branch the executive power to issue rules and enforce the law within the limits set by Congress.

Panel Opinion: Coalition for Responsible Regulation, Inc. v. EPA, No. 09-1322 (per curiam, joined by Sentelle, C.J., Rogers & Tatel, JJ.)

Denial of Rehearing En Banc: Coalition for Responsible Regulation, Inc. v. EPA, No. 09-1322 (per curiam, with concurrence by Sentelle, C.J., joined by Rogers & Tatel, JJ.; dissent by Brown, J., and dissent by Kavanaugh, J.)

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