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Climate Change

EPA Green-House Gas Regulation Argued Before Court

William Perry Pendley By William Perry Pendley, President and Chief Operating Officer of Mountain States Legal Foundation

A hard-hitting brief filed by a western, nonprofit, public-interest legal foundation challenging the attempt by the Environmental Protection Agency (EPA) to regulate greenhouse gases to ameliorate so-called climate change is before a three-judge panel of the U.S. Court of Appeals for the District of Columbia.  Mountain States Legal Foundation (MSLF) argues that a rule issued by the EPA in late 2009 must be vacated and remanded to the agency because it violates a host of interrelated, statutory provisions and because it is based on a selective, unreasonable reading of the administrative record.  The EPA announced, in December 2009, that it has 95% confidence that those emissions pose high risk of extreme harms to the American public.

"This insane rule was hastily promulgated to honor prior political pacts and to coincide with a highly publicized international conference on climate change," said William Perry Pendley, MSLF president.  "It is little wonder that the EPA's rule violates numerous statutory requirements, makes findings that are not the product of reasoned decision-making; and reaches alarmist assessments of the risks posed by climate change that are inconsistent with, and contradicted by, the evidentiary record used by the agency."

On December 15, 2009, the EPA issued a final rule (the Endangerment Rule) in which it found that greenhouse gases (GHG), which include carbon dioxide, methane, nitrous oxide, hydroflurocarbons, perfluorocarbons, and sulfur hexafluoride, endanger the health and welfare of the American people under Section 202(a) of the Clean Air Act (CAA).  The EPA's finding and rule, if permitted to stand, allow the EPA to use the CAA to regulate GHG.  The EPA's new finding came following a 2007 U.S. Supreme Court decision that the EPA has authority to regulate GHG emissions using the CAA.  

On December 23, 2009, and subsequently, several entities petitioned for review changing the Endangerment Rule.  A host of state governments and environmental groups intervened as respondents, and numerous state governments, trade associations, and chambers of commerce intervened as petitioners.  On February 17-18, 2010, the cases were consolidated.  On February 22, 2010, MSLF sought to participate in the matter as an amicus curiae; that motion was granted on February 23, 2010.

Meanwhile, various entities petitioned the EPA to reconsider its Endangerment Rule given new evidence as to the validity of its findings.  On August 13, 2010, the EPA denied those petitions.  New petitions for review of the EPA's latest decision were filed and consolidated with the other petitions.  On March 22, 2011, the court set the briefing schedule for the case.

Carbon Dioxide CO2 Emissions

Mountain States Legal Foundation, created in 1977, is a nonprofit, public-interest legal foundation dedicated to individual liberty, the right to own and use property, limited and ethical government, and the free enterprise system.  Its offices are in metropolitan Denver, Colorado.

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