Court Rejects Industry Challenge to Limits on Smokestack CO2
By Andrew C. Revkin

Efforts to restrict greenhouse gas emissions through an international agreement still appear mired in an array of disputes on display in Cancún climate talks.

But in the United States, a decision issued Friday evening by the U.S. Court of Appeals for the District of Columbia Circuit means that, come January, for the first time, many new or upgraded factories, power plants or other facilities will have to get a permit under the Clean Air Act to emit carbon dioxide, methane or other greenhouse gases. You can read the decision below. The most important line concludes that the industry groups and others seeking to fend off the gas restrictions “have not shown that the harms they allege are ‘certain,’ rather than speculative, or that the ‘alleged harm[s] will directly result from the action[s] which the movant[s] seeks to enjoin.’”

This is a significant step in the tangle of legal proceedings set in motion with the 2007 Supreme Court decision on the authority of the Environmental Protection Agency to regulate carbon dioxide under the clean air law.

Many technical issues will have to be ironed out, and more legal challenges are inevitable down the line, industry lobbyists and environmental campaigners both said. But the plain result is clear, said Brendan Cummings of the Center for Biological Diversity, one of the lead environmental groups behind the years-long legal push on greenhouse restrictions under existing laws:

We’re finally going to actually be regulating smokestack emissions of greenhouse gases in the U.S.

He said the sticky issues include how the “best available control technology” in various instances is determined (this determination includes a consideration of costs). Also, because states carry out the Clean Air Act, there is likely to be a lot of variability in how standards are interpreted. Here’s more background from the Natural Resources Defense Council.

Scott Segal of Bracewell Giuliani, a lobbying group representing utilities, refiners, cement companies and manufacturers, tried to cast the decision as a blow against the struggling economy in an e-mail:

In light of the substantial disagreement over whether federal, state and local regulators can be ready in time to impose preconstruction permit requirements by early January, 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. The denial of a stay is hardly an endorsement of the underlying E.P.A. position. Indeed, we expect vigorous challenges to continue regarding E.P.A.’s unprecedented foray into greenhouse gas regulation.

Michael B. Gerrard, the director of the Center for Climate Change Law at the Columbia University Law School, sees something of a mixed result (I added a couple of explanatory links):

This decision is mostly a victory for the pro-environmental side, because it means the E.P.A. regulations will take effect (barring the very unlikely events of rehearing by the full D.C. Circuit, emergency intervention by the Supreme Court, or Congressional action). However, industry prevailed in its desire that all the cases be heard together, meaning that the weakest rule ( the tailoring rule) will be argued the same day as the strongest rule (the endangerment finding).

Here's the appeals court document.

For those eager for more, here’s a broader (albeit somewhat technical) overview of legal action and greenhouse gases from Cummings at the Center for Biological Diversity:

All the balls that are in motion towards regulation will now stay in motion. First, the endangerment finding, which is the foundation for all the regulation, is intact. That means that the vehicle rules finalized in March 2010 setting mileage and emissions standards for model-year 2012, which are the first ever to address GHGs [greenhouse gases], will go into effect in January.

Under EPA’s interpretation, GHGs become “subject to regulation” on January 2, 2011, which is when the vehicle rules become operational. Once GHGs are subject to regulation, new stationary sources (i.e. smokestacks) that emit more than certain thresholds of GHGs will require permitting that mandates the “best available control technology” for GHGs. The permitting process in most areas is delegated to the states, so what constitutes “best available control technology” (“BACT”) will be fought out in the state permitting realm as well as with EPA.

Initially, in January, under EPA’s “tailoring rule” only sources that emit more than 75,000 tons of  CO2e will require permitting but only if they also require permitting for conventional pollutants as well. Then in July 2011, any facility that emits more than 100,000 tons of CO2e will require permitting even if they do not require a permit for conventional pollutants. EPA has not stated if or when they are going to lower the thresholds to smaller sources. And while regulating the biggest sources first is clearly most important, eventually they will need to start regulating sources below these thresholds. We are challenging this aspect of the tailoring rule for not laying out a plan or timeline for also regulating sources below the 75,000 and 100,000 ton thresholds.

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