Three of the D.C. Court of Appeals’ judges delivered climate-regulation opponents what can only be termed a righteous smackdown last week. Their opinion on the Environmental Protection Agency’s work to regulate greenhouse gases is, as much as any legal opinion can be, a delight to read.
From the barely tempered exasperation in the court’s opening salvo—“We begin with a brief primer on greenhouse gases”—to the impatience with the lines of reasoning called upon by industry and its allies in state government—“This argument is little more than a semantic trick”—this legal document is a salve for anyone sick of the protestations against taking any action, ever, to tackle the looming disaster that is climate change.
The case at hand combined a mountain of complaints about almost every action the EPA has taken to regulate carbon. The agency began the process in 2007 in response to the Supreme Court’s requirement that it consider whether the Clean Air Act covered greenhouse-gas emissions. In 2009, the EPA found that it did. The agency next needed to make rules governing the emission of greenhouses gases by cars and trucks. It made those rules.
Next, the law required the agency to start regulating greenhouse-gas pollutants at power plants, refineries, and other “stationary sources.” Greenhouse gases are emitted at much higher volumes than pollutants like sulfur dioxide or carbon monoxide, and the thresholds set in the Clean Air Act pull much smaller operations into greenhouse-gas regulation. In the short term, the EPA released rules that limited initial regulation to only the largest sources of greenhouse-gas pollution.
Industry groups, along with states from Alaska to Texas to Virginia, objected to every single one of these decisions. The D.C. Court of Appeals told the protesters that on each count, they were either wrong to complain or had no standing to do so.
Just listen to how the judges shot down industry arguments that the EPA should not have relied on reports from the Intergovernmental Panel on Climate Change and National Research Council:
"It makes no difference that much of the scientific evidence in large part consisted of ‘syntheses’ of individual studies and research. Even individual studies and research papers often synthesize work in an area and then build upon it. This is how science works.”
Less stirring, but equally heart-warming, is section F(1), in which the court sweeps away complaints about the IPCC's scientific work. Pieces of climate skeptics’ much-polished evidence were brushed off by the court as "isolated errors" that crumble when facing the large body of science supporting the EPA's decision.
When everyone in politics seems determined to either ignore the EPA or work to slash its funding, the court’s insistence that the EPA is doing exactly what it should be doing is a godsend. And it is pleasing to witness the frustration of attorneys general faced with the reality that, while they may dislike a particular law, their personal tastes carry no weight in court.
But this judicial vindication of carbon regulation also makes the EPA’s foot-dragging on taking action all the more frustrating.
In the case, industry groups complained that the EPA came up with the wrong answer to the question of whether greenhouse gases pose a danger to the country’s health and welfare. In their opinion, the court of appeals judges swept away many of those complaints by arguing that they “are about what would happen were EPA to answer that question in the affirmative.” In 2010, the EPA did conclude that yes, carbon dioxide, methane, and other greenhouse pollutants do pose a danger, and ever since has been letting complaints like the industry presented in this case slow its work to act on that danger.
In 2011, for instance, it gave a slew of polluters a grace period in which they would not have to deal with carbon-dioxide emissions. Some of these industries—ethanol production, landfill gas power generation—could fall under the broad rubric of “clean energy.” But many, like “manure management” operations tied to industrial agriculture, were simply producers of carbon dioxide that the EPA decided to deal with in a few years, rather than right away. Earlier this year, the agency planned to regulate existing power plants but cut out those measures from the rules it released, which cover only new power plants.
It’s certainly possible to regulate existing power plants, the old, coal-fired, carbon-belching piles of nastiness that account for about a quarter of the country’s greenhouse-gas emissions. The administration has chosen to delay that work until after the election. This is how politics works. But the greenhouse gases that are concentrating in the atmosphere as the EPA waits to complete its legally obligated work are not influenced by polls or Electoral College predictions. The more pollutants that reach the atmosphere, the more they will warm the earth, bringing on droughts and wildfires and sea-level rise. That is how science works.
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