Full D.C. Circuit Denies Rehearing in Greenhouse Gas Cases, But Strong Dissents May Improve Supreme Court Chances
The United States Court of Appeals for the D.C. Circuit today denied petitions for rehearing “en banc” from a large coalition of industry and states seeking to overturn a three-judge panel decision that upheld EPA’s first foray into greenhouse gas (GHG) regulation under the Clean Air Act (CAA). In Coalition for Responsible Regulation v. EPA, the three-judge panel had upheld EPA’s GHG endangerment finding, EPA’s regulation of GHG emissions from motor vehicles, EPA’s interpretation that such regulation of motor vehicle GHG emissions automatically triggers GHG regulatory requirements for stationary sources under EPA’s Prevention of Significant Deterioration (PSD) and Title V permitting programs, and EPA’s Tailoring Rule, under which EPA sharply increased GHG regulatory thresholds under those permitting programs to prevent numerous small sources with relatively minor GHG emissions from immediately becoming regulated.
A large coalition of businesses, business associations and states that lost the case before the three-judge panel asked the full court to rehear the case. As had been expected, the full court denied the request. With only eight judges on the full court, all five judges who were not on the panel would have had to vote to overturn the panel for the rehearing request to be granted.
However, the petitioners may have gotten some measure of benefit from having asked the full court to rehear the case because two judges wrote strong dissents to the denial of the reconsideration. Judge Brown, in an impassioned and colorful opinion, first argued that the Supreme Court decision in Massachusetts v. EPA, in which the court determined that GHGs are “air pollutants” for purposes of the CAA’s motor vehicle regulatory program, was wrongly decided. While recognizing that the D.C. Circuit cannot overturn a Supreme Court case, she said she wrote in the hope that a future Supreme Court or Congress would do so. She then said that, alternatively, even under Massachusetts, EPA did not have authority to regulate GHGs under the PSD and Title V programs.
Judge Kavanaugh wrote in a similar vein that he would interpret the PSD provisions of the statute as applying only to the six pollutants regulated under the National Ambient Air Quality Standards (NAAQS) program. He would, however, agree that if a facility triggered the requirement to obtain a PSD permit because of its NAAQS pollutant emissions, it would have to utilize best available retrofit technology for all of its emissions, including GHGs.
The three judges that issued the original panel decision issued an opinion responding to the opinions of Judges Brown and Kavanaugh in which they defended the panel decision.
Parties have 90 days to file a petition for certiorari to the Supreme Court. It may be that the length and passion of the two dissenting judges’ opinions may have an effect on whether the Supreme Court will take the case. All three opinions agreed as to the importance of the case, with the three-judge panelists saying “[t]o be sure, the stakes here are high.” The opinions of the judges may be found here.
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