Plaintiffs optimistic in EPA case

By Michael P. Tremoglie | Mar 2, 2012

WASHINGTON (Legal Newsline) -- A coalition of business organizations -- as well as free enterprise advocacy groups -- challenged the Environmental Protection Agency in a landmark case argued this week in a federal appeals court.

The litigation -- Coalition for Responsible Regulation v. EPA -- revolves around the EPA's authority to regulate greenhouse gas emissions. The EPA determined -- some say arrogated -- it had the authority to establish rules regarding these emissions because they endangered the public health and welfare.

The case is in the U.S. Court of Appeals for the District of Columbia Circuit.

Legal Newsline contacted a lawyer for the lead plaintiff, the Coalition for Responsible Regulation, and an official with the National Federation of Independent Business, another plaintiff, to gauge their reaction the day following the two days of hearings.
Eric Groten of the Austin, Texas, office of the international law firm of Vinson and Elkins represented CRR. He is one of the lead attorneys in the case.

"Originally the rules the EPA adopted were to regulate tailpipe emissions from automobiles," he said. "The decision to regulate tailpipe emissions, according to the EPA, obligates them to require permits to regulate emissions from stationary sources now that they have chosen to regulate tailpipe emissions."

Regarding how he felt the case went after the hearing Feb. 28 and 29, Groten had this to say, "There are a lot of tea leaves to read. One of the most encouraging things was that there was a lot of skepticism by the judges that the EPA has the authority to regulate stationary source emissions because of their authority to regulate tailpipe emissions."

Groten said another problem with the EPA case was their unwillingness to show how the public health and welfare was endangered.

"The EPA had to find that the greenhouses gas emissions from vehicles endangered the public," he said. "The only thing they could state was an imperceptible temperature change ninety years in the future. Even if it were about changing the temperature of the planet the EPA has to articulate how that endangers the health and welfare of the public - and the EPA refused to do that."

Groten said the Court seemed very concerned about letting EPA choose which Clean Air Act provisions it would choose to obey. The panel seemed very receptive to a number of ways that EPA could have, but did not, avoid the senseless task of requiring permits.

Karen Harned is the executive director of the Small Business Legal Center of the National Federation of Independent Businesses. She was an observer during the two days of hearings. She was optimistic about what she witnessed.

"We were encouraged that the court picked up on the concerns by industry that the EPA redrafted the Clean Air Act," she said. "We think the EPA has overstepped its authority by this rule."

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