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®: CRE Regulatory Action of the Week

Court in Divided Opinion Upholds EPA'S Decision Not to Regulate C02
Numerous states, cities, and environmental groups sued EPA over the Agency's decision not to grant a rulemaking petition. The petition asked EPA to promulgate rules under the Clean Air Act regulating carbon dioxide and other so-called greenhouse gas emissions from new automobiles. In a complex, sharply divided opinion, the court dismissed the petitions through a two-judge majority judgment, but there is no majority opinion.

Judge Randolph wrote an opinion which upheld EPA's discretion to deny the rulemaking petitions given conflicting science on the C02/greenhouse gas emission/climate change issue. Quoting previous D.C. Circuit opinions, Judge Randolph noted in his opinion that the court "‘will uphold agency conclusions based on policy judgements...when an agency must resolve issues on the frontiers of science.'" [citations omitted.] Judge Randolph's opinion does not address the issue whether any of the parties have standing to sue EPA in court over the rulemaking petitions.

Judge Sentelle concurred in the judgment but dissented in part. He would dismiss all of the petitions for judicial review on the ground that the petitioners did not have standing to challenge EPA's decision rejecting the rulemaking petition. Judge Sentelle would not reach the merits of the case given his position on the standing issue.

Judge Tatel wrote a third opinion in which he concluded:

  • At least one of the petitioners has standing to sue EPA;

  • EPA has authority under the Clean Air Act to regulate C02 and other greenhouse gas emissions from new automobiles; and

  • EPA has no discretion under the Clean Air Act to decide not to regulate these emissions on the basis of agency policy reasons.
Judge Tatel cited Tozzi v. U.S. Dep't of Health & Services, 271 F. 3d 301 (D.C. Cir. 2001) in support of his opinion that the petitioners have standing.

Given the divided opinions and the nature of the issue–climate change–this may not be the last step in court for this case.
  • Click to read opinion.