Just ahead of a February 16 deadline, a series of lawsuits have been filed in the U.S. Court of Appeals for the District of Columbia challenging the U.S. Environmental Protection Agency’s (EPA’s) finding that greenhouse gases (GHGs) endanger human health and welfare.
At the same time, these plaintiffs—including the attorneys-general of Texas and Virginia, trade groups, a number of Republican members of Congress, and conservative nonprofits Southeastern Legal Foundation, the Competitive Enterprise Institute and FreedomWorks—filed petitions with EPA for reconsideration of the finding. Sixteen states and New York City, meanwhile, have sought to intervene at the D.C. Circuit in support of the finding.
The lawsuits represent a direct attack on the Obama administration’s reliance on EPA regulation of GHGs while it awaits progress on comprehensive federal climate change and energy legislation.
The substantive briefs submitted in support of the petitions for reconsideration focus on recent controversies surrounding the climate science underpinning EPA’s finding. Five basic allegations in the state of Texas’ brief illuminate the immediate objections:
- The temperature datasets EPA relied on in making the finding lack integrity because of various measurement flaws and failures within the East Anglia Climate Research Unit (CRU) to observe proper scientific methods;
- The International Panel on Climate Change (IPCC) reports that EPA relied on in making its endangerment finding contain errors and cite improper source materials;
- The IPCC reports’ authors abused the scientific peer review process and improperly suppressed scientific dissent;
- Some members of the IPCC have improper conflicts of interest; and
- The IPCC process lacks transparency.
These arguments clearly arise out of the publication of e-mail messages stolen from the CRU (the so-called “Climategate” scandal), which revealed potentially questionable behavior by some researchers, and subsequent allegations of flawed data in IPCC reports. Although some of these revelations have proven embarrassing to the scientists involved and minor errors in the IPCC’s report have been acknowledged, it seems unlikely that they will lead EPA to amend the endangerment finding.
The plaintiffs have not yet submitted a substantive briefing to the D.C. Court of Appeals, but based on the arguments made by many opponents during the development of the finding, it is probable that they will argue EPA violated the Administrative Procedure Act by failing to consider the potential impacts of GHG regulation on jobs, businesses and local economies. Based upon the briefing described above, it is likely that they will also seek to attack the science underpinning the finding.
Before the court reaches the merits of the petition, however, EPA will likely challenge the plaintiffs’ standing to litigate the finding, which does not directly impose any obligations on the regulated community. It is unclear if the petitioners will survive such a challenge.
This case is more than a simple challenge to an administrative regulation, however. As prospects for cap and trade legislation grow increasingly dim, EPA’s efforts to regulate greenhouse gases under the Clean Air Act will necessarily become critical to the Obama administration’s climate strategy. EPA’s new greenhouse gas reporting rule, which requires many large sources to report their GHG emissions, took effect on Jan. 1, 2010.
Meanwhile, EPA is preparing to finalize new GHG emissions regulations for stationary sources and motor vehicles. Because the endangerment finding is a necessary precursor to these regulations, this lawsuit indirectly challenges those pending regulations as well.
EPA is not the only administrative agency active in the field. Elsewhere in the executive branch, the Council on Environmental Quality is reportedly planning to issue a guidance document regarding the review of climate change impacts under the National Environmental Policy Act. The Securities Exchange Commission (SEC) recently released guidance documents indicating that material physical, financial or regulatory risks due to climate change must be included in public companies’ SEC filings. See Davis Wright Tremaine’s advisory on the SEC Guidance.
The current claims are only the latest in a series of recent climate lawsuits. In late 2009, the U.S. Courts of Appeals for the 2nd and 5th Circuits allowed common-law nuisance lawsuits, brought by private parties against energy companies, to proceed past the pleading stage. A similar suit is currently on appeal to the U.S. Court of Appeals for the 9th Circuit. Please see Davis Wright Tremaine’s prior advisories on Comer v. Murphy and Kivalina v. ExxonMobil and Connecticut v. American Electric Power.
The current lawsuit, therefore, only adds uncertainty to the already-murky future of climate policy in the United States. While companies that own GHG-emitting facilities are subject to reporting obligations and private lawsuits, it is unclear if they will also be subject to emissions limitations under the Clean Air Act.
While stays of Clean Air Act regulations are very uncommon, it is possible that plaintiffs could seek to enjoin the pending standards, delaying implementation until close to the next presidential election cycle. At the very least, these challenges will keep the regulations in the public eye as EPA’s process continues.