Saturday, July 16, 2005
On Friday, July 15, the D.C. Circuit in a split decision (2-1) upheld EPA's decision not to regulate carbon dioxide.
The court's opinion was penned by Judge Randolph. The court held that, where the standing inquiry and merits so overlap, the court has jurisdiction to determine the merits. The court then declined to decide whether EPA had authority to regulate carbon dioxide, but concluded that EPA had properly exercised its discretion not to regulate. Judge Sentelle concurred in judgment (ala Hamdi) and wrote a dissent concluding that the petitioners lacked standing. Judge Tatel wrote a dissenting opinion. He concluded that petitioners have standing and rejected the court's holding that there is an Article III exception where the jurisdictional question and the merits overlapped. He indicated that EPA has authority to regulate. He also concluded that, while the arbitrary and capricious standard applies to EPAs decisions, EPA must make a reasoned judgment whether greenhouse gases meet the endangerment standard and if they do, EPA must regulate.
A request for rehearing and rehearing en banc is almost certain.
Because the majority did not reach the statutory authority argument, the case should not affect California's controls on carbon dioxide emissions from vehicles.