Group wants U.S. SC to review its challenge to EPA's greenhouse gas finding

By Jessica M. Karmasek | Mar 25, 2013

WASHINGTON (Legal Newsline) -- A government watchdog group is asking the U.S. Supreme Court to hear its challenge to the U.S. Environmental Protection Agency's greenhouse gas "endangerment" finding.

The Pacific Legal Foundation's petition for certiorari was filed with the nation's high court Thursday.

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's 28-page filing argues that the EPA failed to submit the proposed "endangerment" finding for independent scientific scrutiny, as required by the Clean Air Act.

At issue is the agency's finding, released in December 2009, that carbon dioxide -- or greenhouse gas -- emissions from automobiles pose a danger to public health and welfare.

The Clean Air Act requires that such regulations must first be submitted to the EPA's Science Advisory Board, or SAB, before they can be promulgated.

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 air act.

PLF contends that in issuing its finding, the agency failed to comply with this legal requirement.

"We are asking the Supreme Court to hear this case because the EPA cannot be allowed to place itself above the law," PLF staff attorney Ted Hadzi-Antich said in a statement Thursday.

"In issuing its (carbon dioxide) finding, the EPA illegally shielded its work product from peer review. That's unacceptable as a matter of science, impermissible as a matter of law -- and should be downright offensive for anyone concerned about openness, accountability and integrity in the public sector."

PLF first petitioned the agency in February 2010 to rescind the endangerment finding and submit it to the SAB as the law mandates.

When the EPA declined, PLF filed a federal lawsuit in October 2010 and a subsequent appeal in conjunction with more than a dozen states, who challenged the endangerment finding on separate grounds.

Virginia, Texas and Alabama were among the first states to sue.

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.

In June, a three-judge panel of the U.S. Court of Appeals for the District of Columbia Circuit upheld the endangerment finding. A request for review by an en banc panel was denied.

"The EPA's decision to cut procedural corners is especially troubling given the heavy cost to the economy that could result from the endangerment finding," Hadzi-Antich said last week.

"The greenhouse gas ruling could lead to unprecedented federal intrusion into the private sector and the entire economy, by exposing every activity that emits (carbon dioxide) to new federal regulations."

From Legal Newsline: Reach Jessica Karmasek by email at

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