Federal appeals court hears challenges over EPA finding

Jessica M. Karmasek Feb. 29, 2012, 12:40pm


WASHINGTON (Legal Newsline) - A federal appeals court heard challenges this week from more than a dozen states and a government watchdog group over the U.S. Environmental Protection Agency's greenhouse gas "endangerment" finding.

The U.S. Court of Appeals for the District of Columbia was scheduled to listen to arguments Tuesday and Wednesday mornings.

Among those suing the EPA is the Pacific Legal Foundation.

The PLF describes itself as a leading watchdog organization that litigates for "limited government, property rights and a balanced approach to environmental regulations, in courts across the country."

The foundation argues that the EPA's finding is invalid because it did not submit its work product for independent scrutiny by its Scientific Advisory Board, as required by the Clean Air Act.

The agency's finding, released in December 2009, stated that greenhouse gas emissions from vehicles pose a danger to public health and welfare.

"The EPA violated the law and the demands of responsible, accountable government, by imposing a sweeping judgment about CO2 emissions without independent review by scientists of the highest caliber," Ted Hadzi-Antich, senior staff attorney for PLF, said in a statement.

The SAB is a panel of top scientists from universities, research institutions and other highly regarded organizations, empowered by federal law to review any new "criteria document, standard, limitation or regulation" that the EPA proposes to issue under the Clean Air Act.

"Since the 1970s, the EPA has been required by law to submit new regulations for review by the Science Advisory Board," Hadzi-Antich explained. "For some reason, however, under the current administration, the EPA is violating the law and trying to impose sweeping new greenhouse regulations without the required independent scientific scrutiny of the SAB."

Hadzi-Antich argues that the agency can't be permitted to "thumb their noses" at the law and the American people.

"PLF is not a scientific organization, and we don't take a position on the scientific issues per se. Rather, as a watchdog organization, we are fighting for honesty and integrity in the regulatory process, against a bureaucracy that seems to think it is above the law," he said.

"Our attempt to keep the EPA honest and accountable is especially important at this time, when the economy is still struggling."

The ruling, the group argues, could lead to "command and control" regulations, leaving the economy "wheezing."

Also suing the EPA over its finding is Virginia Attorney General Ken Cuccinelli.

Like the PLF, Cuccinelli argues that the EPA violated the law by relying almost exclusively on data from the United Nations Intergovernmental Panel on Climate Change, rather than doing its own research or testing the IPCC data according to federal standards.

Cuccinelli, citing the infamous "Climategate" emails released in December 2009, contends the IPCC data may have been manipulated.

Cuccinelli had petitioned the agency in February 2010 to convene a new proceeding to reconsider its finding.

When the EPA refused to reevaluate its finding, Virginia, along with Texas and Alabama, sued. Later, 12 states joined in the appeal -- including Florida, Hawaii, Indiana, Kentucky, Louisiana, Mississippi, Nebraska, North Dakota, Oklahoma, South Carolina, South Dakota and Utah.

The states all argue that the agency's finding will hurt their economies.

"The EPA's version of cap-and-trade will regulate emissions of carbon dioxide, from factories, to office buildings, to cars, to power plants," Cuccinelli said in a statement. "It is projected to cost households thousands of dollars a year because of increased energy taxes, and everything we buy that takes energy to manufacture or transport will increase in price.

"The regulations resulting from this new EPA authority will most certainly chase jobs out of the country, as the compliance costs to industry may be prohibitive, making our loss China's gain. And what is worse is that the people who will suffer the most as a result of these regulations are the poor."

The Virginia attorney general contends the EPA is exercising a political agenda, instead of a "protecting-the-plant" agenda.

"From the beginning, all we have asked EPA to do is to reopen its hearings to accept the conflicting data, as well as follow the law and verify the data it already used, so we all can have an honest look at the information used to make such an economy-altering decision for this country," Cuccinelli said.

"We are in court because to-date, the EPA has refused to do even that."

From Legal Newsline: Reach Jessica Karmasek by email at jessica@legalnewsline.com.

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