Friday, June 29, 2012
This week a panel of the DC Court of Appeals upheld the EPA’s 2007 finding that Greenhouse Gas (GHG) emissions contribute to global warming and are a threat to public health. This finding, according to the Supreme Court in Massachusetts v. EPA, allows the EPA to regulate GHGs under the Clean Air Act. The opinion in Coalition for Responsible Regulation v. EPA clears the way for the EPA to continue its approval processes to regulate GHG emissions from cars and large power plants. This not unexpected ruling could be appealed to the full Court of Appeals or the Supreme Court. A good summary is available here.
The plaintiffs challenged the finding rather than any of the proposed rules since winning the case would stop the rulemaking in its tracks. Now the EPA is required to issue reasonable regulations. Plaintiffs can still challenge those rules. But keep in mind that even overturning those rules will not let them off the hook. Last year in American Electric Power v. Connecticut, the Supreme Court ruled that a lawsuit brought by several U.S. states claiming that GHG emitted by five power companies was a nuisance could not go forward, since the federal government has pre-empted common law by passing the Clean Air Act. A key part of the opinion, delivered by Justice Ginsberg, was a reminder that states can re-file their common law nuisance claim in the event that the EPA fails to act or fails to issue reasonable regulations.