Yesterday ScienceInsider went through the implications of new federal rules  on greenhouse gases for industries which pollute the air with these pollutants. But legal challenges could complicate an already complex landscape for the rules.
A number of suits challenge the nascent Environmental Protection Agency (EPA) effort to reduce greenhouse emissions, but the agency has actually been prodded into action by lawyers from states and environmental groups from the other side. The current effort to regulate carbon dioxide, in fact, stemmed from a 1999 suit  originally filed by liberal groups against EPA, which eventually led to a Supreme Court decision that EPA had to act since greenhouse gases fell under the purview of the Clean Air Act. Critics of the EPA's efforts, including the powerful future House of Representatives Energy and Commerce Committee Chair Fred Upton (R-MI), say EPA is engaging in a "power grab." But the president says they're just following the law: "The EPA is under a court order that says greenhouse gases are a pollutant that fall under their jurisdiction," Barack Obama said  after he declared legislation on cap and trade dead in the water in the wake of the elections.
Now Obama has turned from pushing cap and trade to "cap no trade " as one critic called it. And the lawsuits are piling up. Most would seek to stop the federal effort, though some put new pressure on EPA or the polluters themselves to stem emissions.
First there are the suits to shut down the EPA's budding regime.
EPA's efforts rest on three pillars. Last year the agency finalized an official "endangerment finding" declaring that greenhouse gasses endanger public health or welfare. Then they set up rules to regulate those emissions from cars. Following that they proposed rules to define which sizes of existing or new industrial facilities required regulation, and when.
All three elements are at issue in one mega-case being litigated in the U.S. Court of Appeals for the District of Columbia Circuit. That case, called Coalition for Responsible Regulation Inc. et al. v. EPA, combines 16 lawsuits which have all been appealed from federal district courts. Two weeks ago, EPA fended off an effort by the litigants to receive a legal "injunction" which would have temporarily blocked EPA from moving forward on the whole program. Sixteen states have weighed in on the side of EPA, , 14 oppose it; enviros are mostly allied with the Obama Administration while a wide variety of pro-business or right-leaning groups side with industry. Briefs on the case, which the judges will hear in parts corresponding to the three pillars, are due some time this spring.
Meanwhile, as ScienceInsider wrote yesterday, Texas has resisted  efforts by EPA to either oversee the state's own regulation of CO2, or step in itself to do so. Earlier this month a court rejected the state's request to block the EPA's instruction to state regulators to set up greenhouse gas regulationss. ("Recognizing the proper role of the States, the Clean Air Act declares pollution prevention to be 'the primary responsibility of States and local governments,' " Texas had argued .) Now the state says that new or modified facilities will face a defacto moratorium because they won't be able to get a permit. EPA says that if the state were to cooperate it could offer those permits. "EPA is offering Texas a life-preserver and, bizarrely, Texas is treating it like a torpedo," David Doniger of the Natural Resources Defense Council in Washington, D.C., said  in a blog entry.
Some cases working their way through the courts could engender new ways to cut emissions. In December, the Supreme Court agreed  to take a case in which states and allied land trust organizations have charged that greenhouse gases emitted by a few big power companies constitute a "nuisance" under common law. (Briefs for American Electric Power v. Connecticut, which consolidates three similar lawsuits, are due in late January). Were the court to rule that pollutants did constitute a nuisance, it could give emitters' opponents a tool apart from the Clean Air Act to tackle greenhouse gases.
But that seems unlikely. Because U.S. Supreme Court Justice Sonia Sotomayor sat on an appeals court which heard one of the lawsuits, she will likely recuse herself, leaving the real possibility that the case will receive a 4-4 decision. That would send it back to the appeals level where courts have ruled on the side of the states. But it's unclear whether the case would get a review from all three appeals courts, which could lower the chances that the "nuisance" tool could come into use. (Plus there's the fact that the Obama Administration has not sided with the foes of industry as one might expect. Instead it has asked the Supreme Court to send the case back to the appellate court so that it can be reconsidered in light of the new greenhouse gas regulatory regime.)
It's worth noting that some power companies are not only staying out of court but defending the EPA regime. Earlier this month, west coast utility Pacific Gas and Electric and seven other big power companies wrote in support of the new rules :
The electric sector has known that these rules were coming. Many companies, including ours, have already invested in modern air-pollution control technologies and cleaner and more efficient power plants. For over a decade, companies have recognized that the industry would need to install controls to comply with the act's air toxicity requirements, and the technology exists to cost effectively control such emissions, including mercury and acid gases. The EPA is now under a court deadline to finalize that rule before the end of 2011 because of the previous delays.
To suggest that plants are retiring because of the EPA's regulations fails to recognize that lower power prices and depressed demand are the primary retirement drivers. The units retiring are generally small, old and inefficient. These retirements are long overdue.