First up some backround from Bloomberg:
EPA’s Greenhouse Gas Rules Are Illegal, Opponents Tell Appeals Court Panel
The U.S. Environmental Protection Agency’s limits on industrial emissions of greenhouse gases including carbon dioxide are illegal and must be thrown out, opponents told federal judges in Washington.
A three-judge panel of the U.S. Court of Appeals today considered challenges to the agency’s rules determining which polluters are covered and when states and industries must comply with regulations curtailing the use of greenhouse gases.And from Greenwire:
“The agency crossed the line from statutory interpretation to statutory revision,” Peter Keisler, a lawyer for the National Association of Manufacturers, told the judges. He said the EPA violated the law when the agency raised emissions thresholds far above what Congress called for.
Companies such as Massey Energy Co. (MEE), business groups including the U.S. Chamber of Commerce and states led by Texas and Virginia are seeking to stop the agency through more than 60 lawsuits. Some argue that the agency relied on biased data from outside scientists, including some affiliated with the so-called climategate scandal.
The arguments were split into three parts. The panel heard arguments yesterday on the agency’s finding that greenhouse gases are pollutants that endanger human health. They also heard arguments against a 2010 rule on motor vehicle emissions that opponents said improperly sets greenhouse-gas standards for stationary sources, such as steel mills and power plants.
Today, the court considered challenges to the EPA’s “tailoring rule,” which limits the businesses covered by carbon regulation and phases in controls.
The agency aims to phase in industrial polluters covered by the carbon rules through 2016. The EPA argued in court filings that the tailoring rule is acceptable under the Clean Air Act and necessary to avoid states being overrun with permit requests....MORE
Judges' questions put heat on EPA, rule challengers
Both U.S. EPA and its adversaries faced tough questioning this morning on the second day of arguments over the lawfulness of the agency’s greenhouse gas regulations…...MORE
Today, the focus was on the “tailoring” rule, which interprets the Clean Air Act in such a way that only major polluters are required to obtain permits for greenhouse gas emissions. The court was considering it alongside the “timing” rule, which required that new controls of greenhouse gas emissions from stationary sources would be triggered on Jan. 2, 2011, and the challenge to older regulations.
The tailoring rule is considered the most vulnerable to legal attack because EPA was forced to effectively rewrite the Clean Air Act in order to prevent the regulations from applying to nonindustrial sources like schools and apartment buildings.
A key issue is whether the petitioners — industry groups, utilities and states — have standing to challenge the rule because they are not currently injured by its impact and would not be affected if the court struck it down. All that would mean is EPA would have to regulate more polluters.
All of the judges expressed some belief that standing could be a major obstacle for petitioners.
Chief Judge David Sentelle in particular appeared incredulous that the remedy the petitioners seek is effectively to give EPA more power to regulate.
“Counsel, that doesn’t even make good nonsense,” he told Texas Solicitor General Jonathan Mitchell....