This does not look like it’s going well for industry lawyers.
Challengers to U.S. EPA’s greenhouse gas emissions rules faced stiff questioning from a panel of federal judges today on why the court should overturn the agency’s determination that the gases pose a threat to human health.
At one point, Chief Judge David Sentelle, who was appointed to the U.S. Court of Appeals for the District of Columbia Circuit by President Reagan, said the logic of one of the petitioners’ arguments was “engaged in some martial arts.”
The first round of today’s arguments focused on EPA’s endangerment finding, the agency’s original conclusion that greenhouse gases pose a health risk and, thus, should be regulated under the Clean Air Act. That rule came after the 2007 Massachusetts v. EPA decision, in which justices ruled for the first time that greenhouses gas are a pollutant subject to the statute.
The challengers — which include states, energy companies as well as mining, farming and chemical interests — had a high bar to clear because EPA was acting within its authority. The lawyers sought to establish that EPA acted in an arbitrary and capricious manner or exceeded its regulatory authority.
Patrick Day of the Coalition for Responsible Regulation argued that the finding “erroneously decided to completely divorce” the risk assessment from the agency’s regulatory decisions. EPA’s inadequate endangerment finding, he said, authorizes “ineffective and perhaps even fruitless regulations.”
Judge David Tatel, who was particularly aggressive in questioning both sides, sharply dismissed Day’s logic.
“I do not understand your argument,” he said. “Why don’t you try again?”
Tatel and Sentelle both seemed concerned that the petitioners were asking the court to overturn the scientific basis for EPA’s endangerment finding or the Supreme Court’s decision in Massachusetts. Both judges indicated that was not their job…