A federal appellate court has rejected a request by environmental activist groups and several northeastern states to revisit a court decision holding the U.S. Environmental Protection Agency (EPA) acted properly in refusing to regulate greenhouse gas emissions.
The activist groups and state attorneys general had hoped the full body of the U.S. Court of Appeals for the District of Columbia Circuit would agree to revisit a July 2005 decision by a three-judge panel that EPA had acted properly. On December 2, however, the full court voted 4-3 to let the July decision stand.
The lawsuit was initially filed in 2003 after EPA rejected pressure from environmental activist groups to regulate greenhouse gas emissions. EPA asserted it did not have the authority to regulate those emissions. Moreover, EPA asserted the science of global warming is unsettled, and therefore said it would not choose to regulate greenhouse gas emissions even if it had the authority to do so.
Split Panel Supported EPA
In July 2005, a panel of the federal appellate court for the District of Columbia ruled in a 2-1 decision that EPA had acted properly. In the majority opinion, Judge A. Raymond Randolph assumed for the sake of argument that EPA did in fact have statutory authority to regulate greenhouse gas emissions. Randolph then concluded EPA acted reasonably in exercising its discretion not to regulate greenhouse gases at this time.
According to Randolph, substantial scientific evidence contradicts the alleged connection between atmospheric greenhouse gas levels and twentieth century temperature trends. Moreover, ruled Randolph, EPA was entitled to weigh various policy considerations even if a link had been proven between greenhouse gas concentrations and global temperatures.
In a concurring opinion, Judge David Sentelle ruled the court did not even need to examine the alleged correlation between atmospheric greenhouse gas levels and global climate because the plaintiffs lacked standing to sue. According to Sentelle, the plaintiffs were required to show they suffered an injury that was particularized to them rather than an injury alleged to affect society as a whole. Plaintiffs could make no such showing, Sentelle ruled.
Judge David Tatel dissented, writing a spirited argument that EPA had both the legal authority (under the Clean Air Act) and the scientific imperative to regulate and reduce greenhouse gas emissions.
Plaintiffs Sought Rare Review
Although appellate court decisions are typically made by three-judge panels whose decisions are considered binding on all judges in the circuit, on rare occasions the entire court will review a panel decision that is controversial or considered suspect. The plaintiffs in the July 2005 decision petitioned for a full-court review after receiving word of the 2-1 decision in favor of EPA.
On December 2 the full court released a short notice saying it would not review the panel decision. The court gave no explanation for its decision, which typically indicates a majority of judges agree with the ruling and rationale of the panel decision.
Tatel, who had dissented in the July panel decision, again wrote a spirited dissent to the court’s decision not to review the July ruling.
EPA has authority to regulate greenhouse gas emissions, Tatel reasoned, because the issue invokes “the threat of global warming, and its attendant consequences for human health and the environment, and therefore presents an issue of exceptional importance.”
Not only does EPA have authority to regulate greenhouse gas emissions, Tatel argued, but it has a scientific and regulatory imperative to reduce emissions. “EPA all but concedes that automobile greenhouse gas emissions cause, or contribute to, air pollution, which may reasonably be anticipated to endanger public health or welfare,” Tatel explained.
Court Defers to Political Process
Although the majority was content to let the July 2005 decision answer Tatel’s December 2005 dissent, a number of environmental attorneys and global warming analysts stepped up to explain and defend the December decision.
“Any alleged Clean Air Act authority for EPA to regulate carbon dioxide is just that: alleged,” said Lisa Jaeger, a partner at the Washington, DC law firm Bracewell & Giuliani, who was EPA acting general counsel when the 2003 lawsuit was filed.
“The alleged authority simply does not exist,” Jaeger explained. “The Clean Air Act mentions CO2 but none of the references are in a regulatory context. There are no directives from Congress for EPA to use the Clean Air Act to settle what is essentially an international political issue. The panel decision grasped this reality, and the full court’s decision to not get further involved is a reconfirmation that this an issue that is best addressed by Congress rather than a regulatory agency or the federal courts.”
“What these endless challenges and appeals amount to,” observed Competitive Enterprise Institute Senior Fellow Marlo Lewis, “is a backdoor attempt to bypass the political branches and the will of our elected representatives.”
“This issue is particularly suited for the political branches of government,” said Jaeger. “This is an issue of tremendous international political importance. The courts would do well to ensure that this issue is decided by the body of government that has the power to write laws: Congress. Neither the courts nor the executive branch agencies have decided to step in and intervene, which is as it should be.”
James M. Taylor ([email protected]) is managing editor of Environment & Climate News.
For more information …
The July 2005 panel decision and December 2005 appeals court decision in Commonwealth of Massachusetts, et al., v. Environmental Protection Agency are available through PolicyBot™, The Heartland Institute’s free online research database. Point your Web browser to http://www.heartland.org, click on the PolicyBot™ button, and search for documents #18157 (appeals court panel decision, 58 pages) and #18158 (full appeals court decision, 4 pages).