December 31, 2013

PLF's air litigation: retrospective and prospective

By PLF's air litigation: retrospective and prospective

2013 was a big year for PLF’s air litigation program, and 2014 is sure to continue the trend.  Nothing gets me more fired up than bureaucrats who break the law while writing rules the rest of us must obey.  The current crop of greenhouse gas regulations is an egregious example of air emissions controls running amok.

The most pervasive greenhouse gas is carbon dioxide, a ubiquitous natural substance essential to life on Earth.  Because carbon dioxide is everywhere and in everything, greenhouse gas regulations are beginning to penetrate virtually every nook and cranny of daily life, threatening our liberties in unprecedented ways.

The federal government started this unfortunate trend in 2009, when the Environmental Protection Agency (EPA) made a finding that carbon dioxide and other greenhouse gases posed a danger to human health and welfare, thereby initiating a cascade of federal regulations, with no end in sight.  But in making the endangerment finding, EPA missed a step: it neglected to obtain scientific peer review of the finding from a blue ribbon panel of scientists known as the Science Advisory Board.  Since 1978, EPA has been required by statute to seek such peer review, and its failure left many of us scratching our heads.  Almost 100 petitioners challenged the first round of EPA’s greenhouse gas regulations, but PLF was the only one to bring up the Science Advisory Board issue.  The legal proceedings lasted years before reaching the Supreme Court in 2013.  Unfortunately, the Big Court chose not to review PLF’s Science Advisory Board arguments, but it agreed to address the limited issue of whether EPA’s regulation of greenhouse gas emissions from cars and trucks triggers regulation of millions of stationary sources throughout the nation.  On December 16, 2013, PLF filed an amicus brief in the Supreme Court explaining why mobile source regulations do not, and cannot, trigger stationary source regulations under the Clean Air Act.   Utility Air Regulatory Group v. EPA (PLF Brief)

Meanwhile, EPA issued other regulations controlling carbon dioxide emissions from new cars and trucks and, surprise-surprise, those regulations did not go through Science Advisory Board peer review, either.  Accordingly, PLF challenged those rules, too, and the cases will be litigated during 2014 in the U.S. Court of Appeals for the District of Columbia.  No matter who prevails in the court of appeals, the challenges to the car and truck rules are destined to work their way up to the Big Show at the Supreme Court.  Stay tuned for updates.

Another PLF greenhouse gas case shows how weird law practice sometimes gets.  A group of teenagers, backed by the deep pockets of environmental advocacy groups, sued the United States, asking a federal court to require the government to do even more to control carbon dioxide.  Representing ten clients, PLF intervened in the lawsuit to help defend the Obama Administration from the teenagers.  Frankly, we were not convinced the Administration would vigorously defend the lawsuit.   The National Association of Manufacturers also joined the suit.  Based in part on PLF’s motion to dismiss, the court threw the case out.  In due course, the teenagers appealed, and on December 23, 2013, PLF filed a joint motion with the manufacturers’ association asking the D. C. Circuit to affirm the lower court’s dismissal.   Alec L v. EPA brief

PLF also sued the California Air Resources Board for the illegal taxes the Board imposed on Californians by virtue of the carbon dioxide auctions administered under the Cap and Trade Regulation.  Though the lower court sided with the Board, PLF will take the case to the California Court of Appeal early in 2014, for the reasons set forth in our legal brief.  Morning Star v. CARB

PLF’s air litigation in 2013 was not limited to challenging greenhouse gas regulations.  In an important case for Californians, PLF sued EPA for using incorrect criteria to approve a CARB emissions standard for certain mobile sources of air particulates emissions.  CARB did not establish that California had a “compelling and extraordinary” need for the standard, which is much more stringent than the federal requirement.  Accordingly, EPA should not have approved it.  This case will be an important component of our 2014 air litigation program.

Though EPA and CARB keep coming at us with complex, unnecessary, and freedom-threatening air regulations, we are meeting them head-on when they go too far.  In the cases discussed here, they’ve gone too far.  Sometimes it may seem that the government is winning the battle of oppression vs. liberty, but don’t be too hasty to reach that conclusion.  Remember, non semper ea sunt quae videntur: Things are not always as they seem.  Happy New Year!

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