When a federal appeals court announced Friday that it wouldn’t stay U.S. EPA’s greenhouse gas regulations, it was not the completely decisive win for the Obama administration it may have seemed.
In the order (pdf), the U.S. Circuit Court of Appeals for the District of Columbia also said the three cases it will hear on the regulations will be dealt with collectively, or “coordinated” in legal terms, a decision that was a partial victory for industry groups challenging the rules.
Most of the attention since the order was released has been on the fact that the court denied the stay request, meaning that several regulations will, as planned, go into effect on Jan. 2, 2011.
But some legal observers say the decision to coordinate the three cases — meaning they will be heard by the same three-judge panel on the same day — is also significant.
Gregory Wannier, deputy director of the Center for Climate Change Law at Columbia Law School, told the New York Times that although the stay ruling was a “big victory” for EPA, the coordination decision “means the court considers the rules to be more related than EPA might have hoped, which means they might be more likely to overturn EPA’s regulations as a block.”
Wannier, who has written a paper (pdf) analyzing the various legal arguments in the case, conceded, however, that the increased likelihood of the rules being invalidated as a result of coordination is “marginal at best.”
The four rules industry groups such as the U.S. Chamber of Commerce are challenging:
- The “timing” rule that requires that new controls of greenhouse gas emissions from stationary sources would be triggered on Jan. 2, 2011, the day that new motor vehicle standards go into effect.
- The “tailoring” rule that interprets the Clean Air Act in such a way that only major polluters are required to obtain permits for greenhouse gas emissions.
- The “endangerment” rule focusing on EPA’s initial decision in which it held that greenhouse gases are harmful.
- The “tailpipe” rule, which adopts new standards for car and light-truck emissions.
For the challengers, coordination — not to be confused with consolidation, which is when cases are combined and dealt with as one case — means they have more of a chance to convince the court that they should treat all the regulations the same.
The tailoring and timing rules have already been consolidated at the request of the industry groups, which is why there are three cases before the court now.
EPA’s legal strategy has always been to try to distinguish the rules as being stand-alone regulations that should not all be analyzed as part of a single aim. It had argued not only that the cases should not be consolidated but also that they should not be coordinated.
EPA spokesman Brendan Gilfillan downplayed the coordination decision, saying in a statement that it was “purely administrative and not significant.”
Bid to protect endangerment rule
Sources involved in the litigation say the agency would prefer to keep the endangerment finding litigation as separate from the other cases as possible, in part because there is a recognition on both sides that the agency’s weakest argument is over the tailoring rule.
The concern among EPA’s legal team is that if the cases were all heard by one panel, a ruling against the tailoring rule could make the endangerment finding more vulnerable.
“While the denial of the stay is a disappointment, the ruling on coordination is a bit of a loss for the EPA,” John Elwood, a partner at the Vinson & Elkins law firm whose clients include the Center for Responsible Regulation, which is challenging the rules told the New York Times.
Elwood thinks the decision was logical because “it is hard not to get through all the briefing on the stay and not think that all the rules should be considered together.”
Attorneys representing environmental groups took a similar line to EPA.
David Doniger, policy director of the Natural Resource Defense Council’s Climate Center, pointed out the dangers of reading too much into preliminary maneuvers by noting that the industry groups had previously thought that it was an advantage to have all the stay requests dealt with at once.
“It obviously didn’t help the petitioners to have all the stay motions balled up together,” he said.
Sean Donahue of the Donahue & Goldberg law firm, who represents the Environmental Defense Fund, said he had no problem with the court coordinating the cases.
“In my opinion, assigning the cases to a single panel makes considerable sense,” he said.
Donahue told the New York Times he has no doubt that the court will craft a briefing process that “will allow for efficient handling of these complex cases, while avoiding blurring of the legal standards.”