One Step At A Time Is Just Too Late: The DC Circuit Strikes Down EPA’s Deferral of GHG Regulation of Biomass Emissions

On Friday, in Center For Biological Diversity v. EPA, the D.C. Circuit Court of Appeals struck down EPA’s rule deferring regulation of GHG emissions from “biogenic” sources.  EPA had promulgated the rule, delaying regulation of emissions from biogenic sources from July 20, 2011, to July 21, 2014, on the ground that the carbon cycle is sufficiently complex that EPA is not yet in a position to judge what the actual carbon impact of different biogenic sources might be.  In fact, the record before the Court indicated that EPA believes that some biogenic sources may on net reduce GHG levels in the atmosphere.

The Court acknowledged that the Tailoring Rule exempts certain GHG sources that would otherwise be subject to regulation under the CAA.  However, as both Judge Tatel’s opinion for the Court and Judge Kavanaugh’s concurring opinion make clear, the dictates of the Clean Air Act are framed in terms of emissions, not impacts.  In other words, administrative necessity and absurd results may justify modifying the CAA’s emissions thresholds when applied to GHG emissions, but they do not justify EPA effectively amending the statute to defer regulation of classes of emissions based on their impacts.

Judge Kavanaugh’s concurring opinion was particularly trenchant.

As a policy matter, EPA may have very good reasons to temporarily exempt biogenic carbon dioxide from the PSD and Title V permitting programs. But Congress sets the policy in the statutes it enacts; EPA has discretion to act only within the statutory limits set by Congress. The statute does not give EPA the authority to distinguish a stationary source’s emissions of biogenic carbon dioxide from emissions of other forms of carbon dioxide for purposes of these permitting programs.

I’m still not fully persuaded that the case was rightly decided.  Judge Henderson’s dissent cogently argues why EPA could reasonably defer regulation of biogenic GHG emissions under the “one-step-at-a-time” doctrine.  She also argued that the Court should have avoided reaching the merits under the prudential ripeness doctrine, given that the deferral expires on July 21, 2014, barely a year from now.

This last argument may point the way forward for EPA.  Given the dissent, I could well imagine EPA seeking rehearing en banc and then, if that were to fail, seeking certiorari.  By the time the Supreme Court were to rule on a certiorari request, there would be little time left before expiration of the deferral.  If EPA is lucky, the case might move directly from being arguably unripe to being moot.

I will note that, aside from its other merits, Judge Kavanaugh’s concurring opinion concisely demonstrates the lunacy of EPA regulation of GHG’s under existing CAA authority.  Anyone who doesn’t think it’s going to be a mess is just kidding him or herself.  I’m not criticizing EPA.  Given the current stalemate in Congress, EPA has both legal authority and a legal obligation to use that authority.  EPA has nothing to apologize for in trying to make the best of a bad situation.  Congress, on the other hand…

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