Air Date: Week of March 2, 2012

The Environmental Protection Agency building. (Photo: Wikipedia Creative Commons)

A federal appeals court in Washington DC heard oral arguments in a case pitting coal, oil and steel industry groups against the U.S. Environmental Protection Agency. The coalition who took the EPA to court claims that Clean Air Act regulations are costly and burdensome for businesses. Host Bruce Gellerman talks to Robert Glicksman, professor of law at George Washington University, about the case.

Transcript

GELLERMAN: From the Jennifer and Ted Stanley Studios in Somerville, MA, it’s Living on Earth, I’m Bruce Gellerman.

In 2007, the U.S. Supreme Court ruled that carbon dioxide is a climate changing pollutant and the EPA could regulate it under the Clean Air Act. The EPA came up with new regulations but backers of fossil fuels, agri-business, and Tea Party politicians claim the EPA's new regs are costly and burdensome for companies.

So they're suing in federal district court, which held two days of oral arguments last week. The case is wonky, with terms like endangerment and tailoring. But, lucky for us, on hand is Robert Glicksman. He's a professor of environmental law at the George Washington University and Professor Glicksman, welcome to Living on Earth!

GLICKSMAN: Thank you. It’s great to be here.

GELLERMAN: So, this is a big deal case, is it?

GLICKSMAN: Yes, it is. It’s one of the big court cases and, indeed, environmental cases to come down in quite awhile.

GELLERMAN: But, didn’t the Supreme Court already rule on this and say the EPA had the authority to come up with the rules?

GLICKSMAN: Yes, but it didn’t mandate that EPA regulate greenhouse gas emissions from cars, or define exactly how to regulate if EPA decided to do so.

GELLERMAN: So the EPA came up with its rules and regulation to enforce the Clean Air Act and cleanup the greenhouse gasses and that’s what this court case is about- those specific rules and regs.

GLICKSMAN: Yes, it’s about EPA’s efforts to follow through on the Supreme Court’s instruction to consider whether or not greenhouse gasses present endangerment to public health and welfare, and, if so, to control the greenhouse gas emissions that are causing that problem.

GELLERMAN: So, are the plaintiffs arguing that greenhouse gasses are not endangering public health and welfare?

GLICKSMAN: Well, they are challenging what’s known as the ‘endangering finding’ that EPA issued after the Supreme Court decision. Early in the Obama Administration, EPA issued an official endangerment finding in which it concluded that the scientific evidence supported the conclusion that the emissions of greenhouse gasses, such as carbon dioxide, are, indeed, creating an endangerment to the public health and welfare.

GELLERMAN: So, do the plaintiffs have a case in this regard? You know, is the EPA science not good?

GLICKSMAN: The courts tend to be very deferential to EPA scientific determinations. And given that the Supreme Court has addressed at least some aspects of this case, thus far, I would be very surprised if the plaintiffs were to prevail on their challenge to the endangerment finding. I think that the court will uphold the EPA’s conclusion that greenhouse gas emissions are contributing to climate change in ways that present threats to the environment and public health.

GELLERMAN: Another big, contentious issue is what they call ‘the tailoring rule.’ What’s that?

GLICKSMAN: The tailoring rule is an effort by EPA to regulate factory emissions of greenhouse gasses in a way that the agency thinks makes sense. Greenhouse gas emissions became subject to regulation under the Clean Air Act and, therefore, EPA became obliged to require states in issuing permits to factories to regulate those emissions.

The problem is, you would wind up regulating an enormous number of sources and not only factories such as manufacturing plants, not only electric utilities that burn coal and emit carbon dioxide, but much smaller facilities – even schools, hospitals and other public buildings. And they simply don’t have the funds or the personnel to handle the crushing workload that would result.

So EPA, what it is trying to do in the tailoring rule, is to tailor or narrow the scope of the permit program so that only the largest sources are going to be controlled by this new set of regulations.

GELLERMAN: So what the opponents are saying is, ‘We’re going to argue you into submission. If you can’t regulate everybody equally, than the tailoring rule ain’t going to pass muster.’

GLICKSMAN: Yes. Essentially what the industry is arguing is that EPA lacks the digression to decide what the cutoff levels will be. So if it’s going to regulate anybody it’s going to regulate everyone. The goal, of course, is, as I’ve think you’ve implied, to wind up with EPA regulating no one. Because if EPA thinks that regulation of the multiplicity of smaller emitters is not feasible, then I think the hope on the part of the challengers is that EPA will essentially throw in the towel and decide not to regulate anybody.

GELLERMAN: So, what do you think the court will decide in terms of the tailoring rule?

GLICKSMAN: It’s a close question, I think. And because the courts under the Clean Air Act have never addressed this precise question, it’s impossible to predict. The real question is whether the court is going to insist upon a literal application of the meaning of the statute or accept EPA’s justification that it is appropriate to allow EPA to adapt modifications to this statute that make the statue feasible, as opposed to impossible to implement. And it’s possible the court could go either way on that question.

GELLERMAN: When do you think that the court will hand down its judgment?

GLICKSMAN: What’s unusual about this case is that the court is holding oral argument over a series of several consecutive days, which indicates that the court regards this as a very complicated set of questions which are related to one another. And so it may take a bit longer for the court to sort this all out than it would in a typical case. But if I were to make a wild guess, I’d suspect that we’ll have some answer by some point this summer.

GELLERMAN: Could this case go back to the Supreme Court? Or is that already a done deal?

GLICKSMAN: I don’t think there is any question that this is a case that could wind up in the Supreme Court’s lap once again. We’ll wait to see what the Court of Appeals panel decides. If the court winds up split two to one, that, at least marginally, increases the chance because it indicates at least one federal judge on either side found that the opposing parties had viable arguments.

GELLERMAN: Well, Professor Glicksman, thank you so much.

GLICKSMAN: My pleasure.

GELLERMAN: Robert Glicksman is an environmental law professor at the George Washington University Law School.

 

Links

More on the endangerment clause of the Clean Air Act