As a follow-up to our October 20, 2010 post entitled “Aviation Associations Denied Intervention into Environmental Lawsuit,” on July 5, 2011 the United States District Court for the District of Columbia refused to dismiss a lawsuit seeking to compel the Environmental Protection Agency (“EPA”) to make an endangerment finding for greenhouse gas (“GHG”) emissions from aircraft. (Ctr. for Biological Diversity v. EPA, No. 10-00985 (D.D.C. July 5, 2011). In its ruling, the court stated that the endangerment finding is a “compulsory” and “mandatory” step under Section 231 of the Clean Air Act (“CAA”), 42 U.S.C. § 7401 et seq. As you may recall from the earlier post, an endangerment finding is a determination by EPA on whether or not aircraft emissions “significantly contribute to air pollution which may reasonably be anticipated to endanger public health or welfare.”

The Center for Biological Diversity, Center for Food Safety, Friends of the Earth, International Center for Technology Assessment, and Oceana sued EPA in 2010 claiming the agency had failed to respond to their petitions for making an endangerment finding for GHG emissions from aircraft, marine vessels and other non-road engines within the 90-day timeline required by the CAA. 

The court did not order EPA to make the endangerment finding for aircraft GHG emissions because the ruling was in response to a motion to dismiss from EPA and came at a preliminary stage of the litigation. The court did, however, grant in part EPA's motion to dismiss. Judge Henry H. Kennedy Jr. dismissed the portions of the lawsuit involving the endangerment findings for marine vessels and other non-road engines, citing EPA discretion. Despite this ruling, the environmental groups may still continue with their claims that EPA did not adequately respond to their petitions seeking regulation of GHG emissions. As this case progresses, please check back to this blog for future posts.