Earth to Judge David Tatel: Do you really think Congress wanted EPA to write 6 million permits for greenhouse gas emissions?

“[Clinton appointee David Tatel] questioned whether Congress really intended to limit that statute to certain pollutants in a way that would exclude greenhouse gases.”

Politico reports:

All sides saw tough questioning from appeals court judges Wednesday in the second of two days of oral arguments over the EPA’s greenhouse gas regulations.

The judges seem to be narrowing a final decision on the EPA’s rule over timing and approach for permitting stationary greenhouse gas polluters to whether the agency is following a statutory requirement or interpreting the Clean Air Act, and if the EPA is interpreting the act, if it is doing so in a way with the simplest results.

A ruling is expected this summer.

In Wednesday’s arguments, judges seemed to reject the possibility that the EPA could have done nothing to deal with the statutory requirements for stationary sources following its finding that greenhouse gases are a danger to public health and welfare and subsequent regulation of auto emissions.

The judges also rejected the idea that industry would be better off without the EPA’s “tailoring rule” — which limits greenhouse gas regulations to the largest polluters first.

“The harm you seek is a regulatory burden. The relief you seek is a heavier regulatory burden,” Judge David Sentelle said to industry attorneys. “That doesn’t even make good nonsense.”

The three-judge panel repeatedly noted the Supreme Court’s 2007 ruling in Massachusetts v. EPA, in which the high court said the Clean Air Act could apply to greenhouse gases emitted by automobiles.

Attorneys argued that if the agency stuck implementing greenhouse gas emissions limits for stationary sources at the low-threshold presented by the auto emission rule, Congress could step in and make changes.

“Any sentence that begins with, ‘Congress will surely,’” Judge David Sentelle began, trailing off, gathering laughter in the courtroom. He later noted that in the five years since Massachusetts, Congress has taken no action to restrict the EPA’s ability or charge to regulate greenhouse gas emissions.

That argument aside, the judges traveled a legal line that could hinge the case on whether they are convinced by industry’s argument that the agency could have interpreted the statute differently.

Some of those opposing the agency’s tailoring rule — and the large industry permitting structure that came with it — argue that it is not needed, because the agency did not need to include greenhouse gases in the stationary source permitting program that subjects some large industry polluters to greenhouse gas emissions requirements.

“I agree with you that EPA has to find its source of authority within the PSD [air permitting] program,” Judge David Tatel said to attorneys for industry and states. But he questioned whether Congress really intended to limit that statute to certain pollutants in a way that would exclude greenhouse gases.

But Department of Justice attorneys faced equally embattled questioning from the judges, who pushed the agency’s attorneys to define where the line should be drawn on the agency’s discretion to interpret the Clean Air Act — and to choose an interpretation that could have results that would necessitate the tailoring rule.

At issue there is the agency’s use of judicial “one-step-at-a-time” doctrine, and “absurd results” doctrine, which allows federal agencies to affect timing and implementation of rules when the law requires something that is outside of their ability to actually do.

“I would think” that in interpreting agency discretion to regulate under “dramatic” situations, Tatel said, that the court would be “especially careful, not especially deferential” to the EPA. [Emphasis added]

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