Court gives impetus to EPA greenhouse gas emission rule

By Steven Mufson
Sunday, December 12, 2010

A U.S. appellate court Friday turned down a request from utilities, oil refiners and the state of Texas to delay the regulation of greenhouse gas emissions by the Environmental Protection Agency.

As a result, the EPA and state agencies can begin to insist that companies use the "best available control technologies" to restrict emissions of carbon dioxide to obtain air permits.

The companies and Texas had sought a court order blocking the EPA from moving ahead until the end of a lawsuit challenging the agency's finding that greenhouse gas emissions from U.S. power plants and large industrial facilities endanger the health of Americans.

The companies contend in that lawsuit that the EPA regulations would be too costly.

But the U.S. Court of Appeals for the District of Columbia said that the companies "have not shown that the harms they allege are 'certain,' rather than speculative."

Texas Gov. Rick Perry (R) has been a particularly vocal opponent of the EPA's authority over greenhouse gas emissions, and many members of Congress have vowed to fight any EPA efforts to set limits. Many analysts say it could become one of the major points of confrontation between Republicans and the Obama administration next year.

Industry groups condemned the court's ruling. "Yet another blow was dealt in favor of overreaching government regulation and against the economic well-being of the American people," Charles T. Drevna, president of the National Petrochemical & Refiners Association, said in a statement.

But environmental organizations hailed the court's order. "The biggest polluters in America hired countless K Street lawyers to undermine EPA's science-based policies to address global warming consistent with its responsibilities under the Clean Air Act," said Vickie Patton, general counsel for the Environmental Defense Fund, "and they utterly failed in meeting the burden of proof that these critically important rules should be stayed."

Bruce Nilles, an attorney with the Sierra Club, said "there is no further obstacle to the U.S. starting Jan. 3rd to regulate [large] sources of CO2." He said that although the companies' lawsuit challenging the EPA's endangerment finding will continue, it "won't be over until long after states and EPA start regulating emissions."

Scott Segal, a lobbyist at Bracewell Giuliani, a firm that represents utilities, refiners, cement companies and manufacturers, said that if companies can't meet requirements, then "the court may have ensured an effective construction moratorium for industrial and power projects. Given the state of the economy, the decision is certainly not a welcome holiday present."

But Nilles said that companies were exaggerating the difficulty of meeting EPA standards. He said that years ago when regulations about acid rain were imposed, "industry promised that the sky would fall, and it didn't."

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