Yesterday, the Environmental Protection Agency denied ten petitions seeking reconsideration of its December 2009 finding that emissions of greenhouse gases cause or contribute to air pollution that can be reasonably anticipated to endanger human health or welfare. (Hat tip: Legal Planet) This so-called “endangerment finding” is the trigger for the regulation of greenhouse gases under the Clean Air Act. As I chronicled here, this finding will have far-reaching regulatory effects.
The EPA’s decision sets the stage for judicial review of the “endangerment finding.” To date, over a dozen challenges have been filed and consolidated in the U.S. Court of Appeals for the D.C. Circuit. In all likelihood, the decision also makes these challenges more difficult. As I have noted before, challenges to the endangerment finding have always faced an uphill climb. Under the Clean Air Act, the EPA does not have to prove that climate change is an iminent or catastrophic threat. Rather, all it needs to show is that the Administrator could reasonably conclude that global warming could have negative effects on health or “welfare,” an expansive term the act explicitly defines to include effects on climate, “economic values,” and “personal comfort and well-being.” On top of that, the D.C. Circuit will defer to the EPA’s read of the relevant scientific evidence.
A frontal assault on the EPA’s scientific conclusions was never really viable. The best hope for those attacking the endangerment fnding has always been to find some procedural irregularity or oversight, such as the failure to respond to specific comments and critiques during the rulemaking process. Overconfident agencies have been known to make such mistakes. For this reason, the reconsideration petitions created a new opportunity for EPA error. If the EPA were too dismissive of the petitions it would be easier to charge it failed to engage in reasoned decisiomaking without directly challenging its conclusions. But from the looks of it, the EPA did not make this mistake, as it has prepared a lengthy (600-plus page) set of responses to the petitioners (available here). I have not parsed the filings, but they give the appearance of an agency prepared to dot the I’s and cross the T’s so as protect its decision from judicial review.
If my analysis is correct, this places the ball back in the legislative court. The courts won’t know the climate policy train off course. If Clean Air Act regulation of greenhouse gases is a mistake (as I believe it is), only Congress can prevent it. And yet Congress will not act on climate change this year. This is actually a good thing, as the House-passed climate bill was a disaster. It would have created a bureaucratic morass but done little to mitigate the climate threat. This creates an opportunity for the next Congress to start afresh, perhaps to embrace a bipartisan compromise that incentivizes greenhouse gas emission reductions by adopting a revenue-neutral carbon tax (such as that proposed by James Hansen or Arthur Laffer), reducing regulatory barriers to alternative energy development, and authorizing inducement prizes for climate friendly technologies. I’m hoping, but not holding my breath.