DC Circuit Upholds EPA GHG Regs, Jiangsu Workshop, Congressional Hearing, IUCN Academy Colloquium Opens (by Bob Percival)

This was a week that helped restore one’s faith in the independence of the U.S. judiciary. On Tuesday June 26 the U.S. Court of Appeals for the D.C. Circuit issued a decision rejecting all the consolidated challenges to EPA’s regulation of greenhouse gases that were argued during the last two days of February. The first 14 pages of the 82-page decision in Coalition for Responsible Regulation v. EPA simply list the names of the 26 petitions for review and the lawyers bringing or defending against them. The panel hearing the case included Chief Judge David Sentelle, traditionally a harsh critic of environmental regulation, and Judith W. Rogers and David Tatel. Perhaps to emphasize their unanimity, the decision was issued per curiam without identifying an individual author.

The court held that EPA’s finding that emissions of greenhouse gases (GHGs) may reasonably be anticipated to endanger public health or welfare was neither arbitrary nor capricious. This was the key finding that triggers EPA’s obligation to regulate GHG emissions under the Clean Air Act (CAA). The court also upheld EPA’s “tailpipe rule” setting emissions standards for cars and light trucks and it found that EPA’s interpretation of the application of the CAA to GHGs was “unambiguously correct.” On the question of whether EPA had the authority to limit the initial round of permit regulations under its prevention of significant deterioration (PSD) program to sources much large that the thresholds designated in the statute (the “timing and tailoring” rule), the court held that the petitioners lacked standing to complain that even more sources had not been regulated. The court rejects challenges to EPA’s assessment of climate science, including the claim that the East Anglia emails undermine the agency’s conclusion. I have created an edited version of the opinion that will be included in my Statutory & Case Supplement 2012-13 that Aspen Publishers will publish next month. It will be posted on my casebook website at: http://www.erlsp.com

On Wednesday June 27 I gave a workshop on Environmental Law to 20 judges from Jiangsu Province, China who visited the law school as part of the Maryland China Initiative. Ten of the judges were from the Jiangsu High People’s Court. The group also included two judges from the Lianyungang Intermediate People’s Court as well as judges from the Changzhou Intermediate People’s Court, the Huai’an Intermediate People’s Court, the Yangcheng Intermediate People’s Court, the Nantong Intermediate People’s Court , the Xighua People’s Court and the Suqian County and District People’s Courts. We reviewed the history and structure of U.S. environmental law and the constitutional sources of judicial power in environmental cases. At the time we knew that the U.S. Supreme Court would be handing down its landmark decision on the constitutionality of the Affordable Care Act on the following day so I also briefed the judges on what to look for and the unusual interplay between law and politics in this case.

On Thursday June 28 I testified before the Subcommittee on Technology, Information Policy, Intergovernmental Relations and Procurement Reform of Congressman Darrell Issa’s Committee on Oversight and Government Reform. The controversial title of the hearing was “Mandate Madness: When Sue and Settle Just Isn’t Enough.” Republican Congressman James Lankford of Oklahoma asserted that environmental groups are conspiring with EPA to invite lawsuits that then are quickly settled with consent decrees obligating the agency to do things it should not be doing to protect the environment. The four majority witnesses at the hearing supported this notion though only one of them, former EPA General Counsel Roger Martella focused primarily on the “sue and settle” issue. William Kovacs from the U.S. Chamber of Commerce primarily argued that regulations kills jobs, while Oklahoma Attorney General E. Scott Pruitt and William M. Yeatman from the Competitive Enterprise Institute complained about EPA’s regional haze regulations which were the product of a lawsuit that was settled.

I was the only minority witness and I argued that the claim of collusive litigation is a fantasy. Lawsuits to force EPA to regulate generally require that the agency has failed to perform a mandatory duty, settlements are to be encouraged and must be approved by a court after hearing any objections, and the agency may not commit to the substance of regulatory changes because rulemaking is subject to the requirements of the Administrative Procedure Act. I also argued that EPA’s propensity to settle was no different under the Obama administration than previous administration. This prompted Congressman Labrador from Idaho to say that the Bush administration had not tried to shut down the coal industry. A video of the hearing is now online on You Tube at: http://www.youtube.com/watch?v=0nUBainl97M&feature=relmfu

The hearing ended just as news was breaking concerning the U.S. Supreme Court’s decision upholding the Affordable Care Act by a 5-4 vote. By construing the individual mandate as a tax, Chief Justice Roberts provided the crucial fifth vote for upholding it. But he separately indicated that he did not believe Congress had the power to adopt the mandate under the commerce clause, a position echoed by the four dissenters who oddly did not join the Chief Justice’s opinion on this issue, failing to make it part of the opinion of the Court. Normal principles of judicial restraint would have allowed Roberts not to reach the commerce clause issue because the mandate is constitutional as a tax.  While the editors of the Wall Street Journal implied that the dissenter’s reference to Justice Ginsburg’s “dissent” on the mandate was a mistake revealing a last minute vote switch by Robert, I am not persuaded. I think the dissenters want to emphasize that their are now five votes for a new limit on commerce. Although the decision may spawn creative new legal theories to attack the constitutional basis for environmental regulation, right now I do not see this aspect of it being a major threat to environmental law.

Following the hearing, my research assistants and I walked over to the Court, which was mobbed with people - Tea Party types in colonial dress, ministers kneeling and praying with bibles, and Michelle Bachmann with her own loudspeaker delivering a stream-of-consciousness harangue about it being the day liberty ended in the U.S.

The Tenth Colloquium of the IUCN Academy of Environmental Law starts today in Baltimore at the University of Maryland Francis King Carey School of Law. Some participants had their arrival delayed by the fierce storm that hit the east coast on Friday night. Today’s events include a symposium on environmental law clinics followed by a bullpen party at the Baltimore Orioles/Cleveland Indians baseball game. I will try to post updates on the Colloquium as frequently as possible.