Industry lawyers botching EPA ‘tailoring rule’ challenge, too

With the assistance, of course, of numbskulled judges.

Greenwire reports:

Both U.S. EPA and its adversaries faced tough questioning this morning on the second day of arguments over the lawfulness of the agency’s greenhouse gas regulations…

Today, the focus was on the “tailoring” rule, which interprets the Clean Air Act in such a way that only major polluters are required to obtain permits for greenhouse gas emissions. The court was considering it alongside the “timing” rule, which required that new controls of greenhouse gas emissions from stationary sources would be triggered on Jan. 2, 2011, and the challenge to older regulations.

The tailoring rule is considered the most vulnerable to legal attack because EPA was forced to effectively rewrite the Clean Air Act in order to prevent the regulations from applying to nonindustrial sources like schools and apartment buildings.

A key issue is whether the petitioners — industry groups, utilities and states — have standing to challenge the rule because they are not currently injured by its impact and would not be affected if the court struck it down. All that would mean is EPA would have to regulate more polluters.

All of the judges expressed some belief that standing could be a major obstacle for petitioners.

Chief Judge David Sentelle in particular appeared incredulous that the remedy the petitioners seek is effectively to give EPA more power to regulate.

“Counsel, that doesn’t even make good nonsense,” he told Texas Solicitor General Jonathan Mitchell.

In response, Mitchell said the theory is that Congress would intervene if greenhouse gas regulations were applied to a much larger range of emitters, a concept that those observing the proceedings in the packed courtroom found amusing based on Congress’ failure to enact climate legislation.

It emerged later in the argument that the separate challenge to several of EPA’s past Clean Air Act regulations, could be more fruitful for petitioners…

Congress never intended for the EPA to write 6+ million permits for CO2 emitters — apparently a concept too far for Mitchell and Sentelle.