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EPA Endangerment Lawsuits Crowd Court

Lawsuits challenging the Environmental Protection Agency's (EPA) December endangerment finding have crowded a federal court in Washington, DC, with three states and a number of industry groups at the forefront.

The U.S. Chamber of Commerce, the world's largest business federation, and the states of Texas, Virginia and Alabama filed separate petitions in the U.S. Court of Appeals for the District of Columbia Circuit that attacked the EPA's authority to regulate greenhouse gas (GHG) emissions under the Clean Air Act (CAA).

Also challenging the EPA is the National Association of Manufacturers (NAM), which was joined in its petition by the American Petroleum Institute, the National Petrochemical & Refiners Association, the National Association of Home Builders, the Corn Refiners Association, the Brick Industry Association, the Western States Petroleum Association and the National Oilseed Processors Association.

A total of 16 "endangerment" lawsuits were filed in the DC appeals court before the deadline last Tuesday, according to a report by the New York Times.

The lawsuits challenge the EPA's December endangerment finding that carbon dioxide (CO2) and other GHG emissions pose a danger to the public health and welfare (see NGI, Dec. 14, 2009). The EPA decision, if allowed to stand, would enable the agency to legally regulate GHG emissions under the CAA in much the same way that it regulates the pollutants that cause smog. In addition to their court challenge, both Virginia and Texas have asked EPA Administrator Lisa Jackson to reconsider her decision.

Virginia Attorney General Ken Cuccinelli said the EPA acted in an "arbitrary and capricious fashion" and failed to properly exercise its judgment by relying almost exclusively on reports from the International Panel on Climate Change (IPCC) in attributing climate change to GHG emissions. In doing so, he said the EPA substantially ceded its obligation to make a judgment on the dangers of GHG emissions to the United States.

"There are significant issues with the EPA basing much of its endangerment finding on IPCC reports. The IPCC reports were produced without regard to U.S. data standards and thus lack the transparency and data quality standards that the EPA should be demanding in the reports it bases its endangerment finding on.

"The EPA was driven by political concerns and used questionable scientific reports to reach an outcome driven by politics. The EPA findings of endangerment of health and welfare are hypocritical as they failed to consider and properly weigh the offsetting harms to the health and welfare that will flow from their economically destructive regulation," Cuccinelli said.

The Lone Star State's legal arguments mirrored those of Virginia. "Texas is aggressively seeking its future in alternative energy through incentives and innovation, not mandates and overreaching regulation," said Texas.

"The EPA's misguided plan paints a big target on the backs of Texas agriculture and energy producers and the hundreds of thousands of Texans they employ. This legal action is being taken to protect the Texas economy and the jobs that go with it."

The state's legal action contends the EPA's endangerment finding is "legally unsupported" because the agency outsourced its scientific assessment to the IPCC, which has been discredited by evidence that key scientists lacked objectivity, hid flaws in their research and attempted to keep "contravening evidence" out of IPCC reports, according to Texas officials -- Perry, Attorney General Greg Abbott and Agriculture Commissioner Todd Staples.

"The U.S. Chamber strongly supports efforts to reduce greenhouse gas emissions in the atmosphere, but we believe there's a right way and a wrong way to achieve that goal," said Steven Law, chief legal officer and general counsel.

"The wrong way is through the EPA's endangerment finding, which triggers Clean Air Act regulation...The right way is through bipartisan legislation that promotes new technologies, emphasizes efficiency, ensures affordable energy for families and businesses, and defends American jobs while returning our economy to prosperity.

"We also need a comprehensive international [climate change] agreement that includes all CO2-emitting economies, which the Chamber has been actively working toward. We [will] continue to call for Congress to address climate change policy through the legislative process, rather than having EPA misapply environmental statutes like the Clear Air Act or Endangered Species Act that were not created to regulate greenhouse gas emissions," Law said.

In NAM's court petition, "we are challenging EPA's 'endangerment finding' determination and focusing on whether they asked the right questions, sought the right information and whether they are meeting their burden under the standards set forth in the Clean Air Act," said NAM President John Engler.

"If EPA moves forward and begins regulating stationary sources [under the CAA], it will open the door for them to regulate everything from industrial facilities to farms to even American homes. Such a move would further complicate a permitting process that EPA is not equipped to handle, while increasing costs to the manufacturing sector.

"We support a comprehensive climate change policy that achieves real environmental results while also fostering continued economic growth -- essential conditions for a healthy manufacturing sector in the United States."

In Congress Sen. Lisa Murkowski (R-AK) is leading the charge against EPA's regulation of GHG emissions. She introduced a "disapproval resolution" last month to block the agency's efforts to control GHG emissions under the CAA (see NGI, Jan. 25). Like the Chamber's Law, Murkowski believes GHG emissions should be addressed in climate legislation rather than in regulation, and by Congress -- not the Obama administration.

The EPA' endangerment finding could effectively be negated if Murkowski's disapproval resolution is ratified. She is expected to bring the resolution up for a vote in either early or mid-March, said Murkowski spokesman Robert Dillon. The resolution would only require 51 votes to pass the Senate, but it is much less likely to receive a favorable vote in the House where leaders are strong supporters of GHG regulations.

The bipartisan Senate resolution is backed by three Democrats -- Sens. Blanche Lincoln of Arkansas, Ben Nelson of Nebraska and Mary Landrieu of Louisiana -- and by 35 Republicans, according to Murkowski. The resolution of disapproval is an instrument rarely used by Congress. It has been attempted only twice in the past -- once successfully.

"I continue to believe that this command-and-control approach [by the EPA] is our worst option for reducing emissions...We should take [the] EPA regulations off the table," Murkowski said in late January.

Murkowski contends that the Obama administration is using the EPA's threatened action as a stick to get Congress to move more quickly on climate change legislation than it otherwise would. "That strategy has failed so far and will continue to fail in the months ahead because members of Congress will not enact bad legislation in order to stave off bad regulation," she said.

In offering the disapproval resolution, "my goals here are twofold: to ensure that Congress has sufficient time to work on climate legislation," and to ensure that a "massive expansion of the Clean Air Act" does not occur before that task is completed, Murkowski said.

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