Industry attorneys don’t have high hopes for the DC Circuit.
Opponents of EPA’s greenhouse gas (GHG) rules are suggesting they will likely appeal an upcoming appellate court ruling that is widely expected to uphold the agency’s climate endangerment finding, the basis for EPA’s rules, though observers say the court could remand the “tailoring” rule, which is intended to exempt small sources from permitting.
At a March 1 Cato Institute forum on the oral arguments in case, Coalition for Responsible Regulation, et al. v. EPA, et al., four lawyers who argued portions of the case on behalf of the petitioners indicated that they intend to pursue their long-standing arguments that the endangerment finding is unlawful and the agency has not shown that its GHG rules are needed.
There is a “specific legal point that has been lost in the shuffle,” Patrick Day, attorney for the coalition, told the forum. “The basic principle of reasoned decision-making is at stake.”
He cited the lack of a linkage between the finding and the regulations that flow from it. Despite finding endangerment under the Clean Air Act, EPA has not “once” considered whether the resulting regulations “will do anything about it at all.”
Day listed a host of concerns with the agency’s approach, charging that EPA has not said “what meaningful impact on health and welfare” would flow from the resulting regulations, and is not requiring the endangerment finding to take into account whether it triggers rules that can actually solve the problem.
“That is a fundamental legal flaw,” he said. “Our contention is that the word ‘endanger’” does not compel regulation “when it cannot be done legally”…