The U.S. Environmental Protection Agency ("EPA") will be fighting a battle on many fronts with respect to its recent finding that greenhouse gases in the atmosphere endanger the public health and welfare of current and future generations (the "endangerment finding"). At least three lawsuits have been launched to challenge the ability of the EPA to regulate greenhouse gases under the Clean Air Act based on its endangerment finding. The litigious onslaught is far from surprising, but comes at a bad time as prospects for passing a climate change bill in Congress dimmed further this week.
The State of Texas launched a lawsuit this week opposing the endangerment finding. A similar action was launched the same day by a coalition of eight trade groups, including the National Association of Manufacturers, the American Petroleum Institute (API), and the National Association of Home Builders. The U.S. Chamber of Commerce kicked off the trend last week with a petition challenging the process by which the EPA arrived at its endangerment finding.
In fact, the Chamber of Commerce has been on the offensive for several months, but appears to have changed tactics. Back in August, the Chamber was calling for a "Scopes monkey trial" of climate change science. Now they appear to be taking a more clinical administrative law tack, alleging that the EPA's process for making the endangerment finding was deficient. The Chamber's chief legal officer, Steven J. Law, said that the legal challenge "will focus specifically on the inadequacies of the process that EPA followed in triggering Clean Air Act regulation, and not on scientific issues related to climate change or endangerment."
The Chamber's view is not shared by all of its members. Apple, Pacific Gas and Electric, PNM Resources, and Exelon announced last year that they would not renew their memberships as a result of the Chamber's stance on climate change. Nike stepped down from the board in protest, but remained a member in hopes of advocating for a change in the position.
The lawsuits are not surprising. All of the petitioners have expressed deep concern about the economic impact of EPA-administered emissions regulations. Perhaps these stakeholders believe that a more favourable and flexible climate change regime will be developed in Congress, although they may be hoping to stall that effort as well.
And stalled is exactly what the bills in Washington appear to be. Making matters worse, key industry supporters ConocoPhillips, Caterpillar, and BP recently dropped out of the US Climate Action Partnership, which has been lobbying Congress to pass climate change law. They cited concerns that the draft bills did not do enough to recognise the importance of natural gas and were too favourable to the coal industry.
The brakes are therefore on all efforts to regulate climate change in the U.S. Given the federal government's strict policy of harmonization with the U.S., Canada's efforts to create national climate change legislation are therefore also on hold as well. Until progress is made south of the border, emissions in Canada will most likely be regulated at the provincial or regional level, if at all.