The EPA's Day in Court

A number of states have joined with industry organizations to challenge new rules from the Environmental Protection Agency on the grounds that they run contrary to the Clean Air Act. Oral arguments began on February 28 before D.C.’s Court of Appeals.

Previous cases have not gone so well. In 2007, in Massachusetts v. EPA, the Supreme Court affirmed the EPA’s authority to regulate carbon dioxide as a pollutant under the Clean Air Act. And last year, the Court unanimously threw out a lawsuit, American Electric Power Co. v. Connecticut, that was brought by eight states. In its decision, the court held that neither states nor private parties could bring a global-warming claim under the federal common-law theory of “public nuisance” because the EPA held authority over this issue. That decision leaves all such regulation solely in the hands of the EPA and threatens the right of plaintiffs even to appeal its decisions.

But as the agency has moved to issue regulations intended to remedy “global warming,” an increasingly broad and robust set of empirical observations compels the conclusion that its operating theory and predictive models of climate are both wrong.

From a legal standpoint, one major problem with the EPA’s risk-assessment model — known as the Endangerment Finding — is that it is completely disconnected from the regulations that EPA itself claims the Finding automatically triggered; namely, the “Tailpipe Rule,” “Timing Rule,” and “Tailoring Rule.” In basic terms, this means that the “solution” was designed without any reference to the description of the problem. There is, for example, no definition of how much greenhouse gas is “too much,” what level causes “endangerment,” or what quantity is “safe.” There is, therefore, no goal around which to rationalize the EPA’s regulations, and no fixed line in the sand to halt the scope of the agency’s power.

Such a disconnect is both legally unprecedented and a radical departure from prior regulation, and it effectively allows regulation of a non-toxic and ubiquitous byproduct of civilization based on the arbitrary and unlimited discretion of the EPA, with no attendant restraint on the agency’s powers.

Let’s look at the three main regulations. First, the “Tailpipe Rule,” which is a joint venture with the National Highway Traffic Safety Administration (NHTSA). On their own, the NHTSA’s CAFE mileage standards for vehicles achieve almost all of the greenhouse-gas reductions that the EPA’s rule is intended to effect. The one exception that it does not cover: vehicle air conditioners. Assuming that the EPA is right on the science — a very daring assumption — the incremental environmental benefit of its being involved in the area at all is a best-case-scenario reduction of .004 degrees centigrade over 90 years. Don’t take my word for it; this statistic is from the EPA’s own estimates, which are published in the Federal Register. Such a change is well below the threshold of detection: .05 degrees centigrade.

And by just how much will such regulation have prevented a “sea level rise” after 90 years? In the best case scenario, by only .05 centimeters — or the width of a line drawn by a fine-point pen. As well as being insignificant in the extreme, this is also well below the threshold of detection.

Secondly, with its “Timing Rule,” the EPA adopts the position that its regulation of greenhouse gases from cars under the Tailpipe Rule automatically requires it also to regulate greenhouse gases from stationary sources, non-moving emitters such as factories, power plants, offices, and so forth. But on such a basis, if it applied the Clean Air Act literally, 6 million facilities across the United States would have to apply individually for permits from the EPA. This would obviously be absurd, and the EPA readily acknowledges that it would be impossible to manage and that it is not what Congress intended.

Such a problem explains the third instrument, the “Tailoring Rule,” by which the EPA purports to “tailor” the unambiguous numerical permitting thresholds in the Clean Air Act from 100 and 250 tons per year for pollutants from stationary sources, to 75,000 tons per year for carbon dioxide and other gases supposedly involved in global warming. In other words, because it’s literally impossible to regulate greenhouse gases under the terms of the Clean Air Act, the EPA decided to rewrite the Act on its own. Naturally, this regime imposes a massive regulatory burden on industrial America.

One would not know that from the EPA’s language, however, which classifies its tailoring rule as “regulatory relief” and thus leaves newly regulated companies no room to complain. As a result, we are left with the risible fact that the second day of oral arguments before the Court of Appeals will be spent, in part, arguing about whether or not the plaintiffs have legal standing to complain about these new regulations. The EPA’s nutty legal theory is that the regulatory relief afforded by the tailoring rule gives would-be plaintiffs no grounds on which to complain. The agency further contends that it made the decision to automatically trigger stationary-source regulation three decades ago, and that no party can challenge it today, even if it is 100 percent wrong.

Since these rules are classified as “regulatory relief,” the EPA calculates no environmental benefit from the regulation of stationary sources. Even more absurdly, the agency ascribes a negative cost to its regulations on the basis that its “tailoring” will save money. You read that right: Even though these regulations would subject stationary sources to greenhouse gas regulation and permitting requirements for the first time, there is no real analysis by the EPA of the costs or benefits of doing so. None.

If the EPA had just let the NHTSA continue with its CAFE standards — and not adopted the EPA Tailpipe Rule — there would be no stationary-source regulation.

Thus, since the incremental benefit of the EPA’s Tailpipe Rule is effectively zero, it appears that the rule was little more than a Trojan horse, designed to introduce stationary-source regulation. This suspicion is only strengthened by the fact that the rule’s definition of greenhouse gases includes two gases that aren’t even emitted by mobile sources, only by stationary ones.

The EPA’s rules, which radically expand regulatory authority, are premised on a scientific claim that is being increasingly refuted by empirical evidence. And the science aside, its regulatory program is structured in a fundamentally deceptive manner. The Court of Appeals should strike down these actions. If allowed to stand, the new rules will impose enormous and unjustified costs on business that will permanently damage our economic future.

— Hans von Spakovsky is a senior fellow in The Heritage Foundation’s Center for Legal and Judicial Studies.

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