EPA Emissions Rules May Spawn Lawsuits

by | Dec 16, 2009

judge gavelWith the Environmental Protection Agency on pace to require so-called “best available control technology” (BACT) to limit emissions, some are vowing lawsuits to protest the rule, reports the New York Times.

Those opposed to the EPA endangerment finding have until Feb. 16 to do so.

Indeed, the courts may well have a place in determining the fate of emissions regulations, according to this guest column. Two appellate court decisions open the door to broad legal claims against utilities and other greenhouse gas (GHG) emitters for injunctive relief and compensatory and punitive damages. The third, issued by a district court, shut such claims down but will likely be appealed.

But the forthcoming lawsuits likely will be from industry groups opposed to emissions regulations.

It may boil down to how EPA interprets BACT, which has so far applied to tailpipe emissions, to stationary sources of emissions like power plants and factories.

At first, standards will come on a case-by-case basis, but eventually industry specific standards on emissions will be developed, in the form of “new source performance standards,” or NSPS. The standards may require states to set emissions limits on existing sources, which will mean costly retrofits.

The Competitive Enterprise Institute has already indicated it will use the courts to hold its position on emissions. Just hours after the EPA made its endangerment finding final, the institute said it would challenge the finding in federal court, reports E&E.

The institute also plans to sue NASA by the end of the year if the agency does not release some data that the institute requested under the Freedom of Information Act, reports the New American. The institute has said the data is “highly damaging” to global warming arguments.

Yet the Natural Resources Defense Council predicts that groups challenging the endangerment finding will have a tough time finding favor in the courts. That’s because the finding itself doesn’t “bind anyone to do anything or prevent anyone from doing anything,” according to the New York Times article.

In EPA’s proposal, facilities that emit less than 25,000 tons of CO2e annually are exempt from the rules. But even that aspect of the proposal may not stand up in court, because the Clean Air Act applies to sources that emit 100 or 250 tons or more of a pollutant each year.

If the so-called “tailoring rule” that created the 25,000 ton exemption is struck down, small businesses could be subject to emissions standards.

Stay Informed

Get E+E Leader Articles delivered via Newsletter right to your inbox!

Share This