Federal Court Ruling Evidences Runaway Regulatory Chain Reaction

by William Yeatman on July 13, 2011

in Blog, Features

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Regulating air quality under the Clean Air Act is like eating Pringels: Once you pop, you can’t stop. That is, the Clean Air Act is structured such that regulation begets more regulation. This chain reaction is a major reason why the Obama administration’s decision to regulate greenhouse gases pursuant to the Clean Air Act was either foolish or diabolical. In so doing, the Environmental Protection Agency opened Pandora’s Box. It wants to choose when and where it regulates greenhouse gases, but it doesn’t have this discretion. Environmentalist special interests can and will use the courts to force the EPA’s hand. By the same token, however, this means EPA can use such suits as political cover, claiming it does not want to regulate this or that industry, or does not want to regulate under this or that Clean Air Act provision, but has no choice because ‘the court made us do it.’

To wit, last week the Center for Biological Diversity, an extremist environmental organization, won a significant case against the EPA in the D.C. Circuit Court. The litigation stemmed from the Center for Biological Diversity’s desire for the EPA to regulate greenhouse gas emissions from the aviation sector under the Clean Air Act. The first step towards such regulation is for the EPA to determine that greenhouse gases from airplanes “endanger” public health and welfare. In December 2007, the Center for Biological Diversity petitioned the EPA to make this “endangerment” finding. To date, the EPA has refused. So the Center for Biological Diversity sued to compel action.

Evidence suggests that the Obama administration is not interested in regulating greenhouse gases from aircraft at this time. Otherwise, the EPA would have granted the Center for Biological Diversity’s petition to make an “endangerment” finding, right? In addition, the Obama administration opposes the European Union’s plan to regulate greenhouse gas emissions from airplanes. Instead, the EPA seems to want to continue with its current policy of regulating greenhouse gases from automobiles and stationary sources, on its own timeline.

Lawyers from the Center for Biological Diversity alleged that the EPA didn’t have a choice in the matter. They argued that the language of the Clean Air Act requires the EPA to issue an “endangerment” finding for aviation sector greenhouse gases. In order to avoid having to make such a determination, the EPA argued that the case should be dismissed on arcane jurisdictional grounds.

Regarding the EPA’s discretion to issue a finding whether greenhouse gases from aircraft “endanger” public health and welfare, the D.C. Circuit Court agreed with the Center for Biological Diversity. According to the Court’s opinion,

EPA acknowledges that paragraph 231 (a)(2)(A)’s use of mandatory language (“[EPA] shall…issue proposed emission standards…” creates a post-endangerment finding duty to regulate, but it argues that it does not require EPA to conduct the endangerment finding in the first place. The plaintiffs [The Center for Biological Diversity] respond that such a construction would defeat the purpose of the Act by allowing EPA to shirk its duty to combat air pollution. The Court agrees with the plaintiffs.

This ruling puts the Obama administration in a pickle.  In December 2010, the EPA found that greenhouse gas emissions from automobiles “endanger” human health and welfare. This was the first link of the regulatory chain reaction I noted in the opening paragraph of this post. How can the Obama administration reasonably assert that greenhouse gases from cars “endanger” human health, but the same doesn’t hold true for emissions from airplanes? If the EPA finds that aircraft greenhouse gas emissions “endanger” public health (as it seems it must), then regulation is compulsory. Then again, perhaps the Court’s ruling is precisely what the administration had hoped for.

Unfortunately, the Center for Biological Diversity is only getting warmed up. Legal precedent (in particular, Natural Resources Defense Council v Train; for analysis, see here) indicates that environmentalists can compel the EPA to set a National Ambient Air Quality Standard for greenhouse gases under the Clean Air Act. This would be a disaster, because the logic of the Clean Air Act implies that such a standard would have to be set below current levels, which would mean that the entire U.S. would be in non-attainment. To achieve attainment, the U.S. economy would have to de-industrialize. In fact, the Center for Biological Diversity and 350.org already have petitioned the EPA to establish a greenhouse gas National Ambient Air Quality Standard at a level well below current atmospheric concentrations.

To be sure, there were warnings that this would happen. My colleague Marlo Lewis has been sounding this alarm for some time. See here, here, and here. Last week’s D.C. Court ruling is further evidence he is right. Environmentalist lawyers, and not the EPA, hold the regulatory reins on greenhouse gas emissions, and they are intent on moving full speed ahead, all the way to economic disaster.

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