D.C. Circuit Denies States' Petition to Force EPA to Take Action on GHG Emissions

June 27, 2008
by TODD KANTORCZYK
MGKF News Flash

On June 26, 2008, a three judge panel of the U.S. Court of Appeals for the District of Columbia Circuit denied a petition seeking an order to force the U.S. Environmental Protection Agency ("EPA") to take the first step towards regulating greenhouse gas emissions, consistent with the Supreme Court's decision in Massachusetts v. EPA. The petitioners, which included the New Jersey and Delaware attorneys general and the Pennsylvania Department of Environmental Protection, sought a writ of mandamus ordering EPA to determine within 60 days whether carbon dioxide emissions from new motor vehicles endanger public health and welfare.

While the panel did not issue an opinion with the order, one of the three judges on the panel, Judge David S. Tatel, issued a separate statement concurring in part and dissenting in part from the panel's decision. In agreeing that mandamus was inappropriate at this time, Judge Tatel acknowledged that nothing in the Massachusetts v. EPA opinion or the Clean Air Act prescribed a specific deadline for EPA action, and that no previous D.C. Circuit case has granted mandamus in the case of agency delay of a year or less. Judge Tatel, however, argued that the petition should be held in abeyance, with periodic updates required from EPA, in light of EPA actions that call into question whether EPA's stated reasons for delay are "simply an excuse to avoid complying with the [Clean Air Act]." Judge Tatel went on to specifically reference evidence that EPA had, in fact, drafted an endangerment finding and proposed regulations in December 2007, which were rejected by the White House. Indeed, a recent New York Times article reported that White House officials, upon receipt of the draft documents from EPA via e-mail in December, responded that the e-mail would not be opened. Earlier this year, EPA did announce that an advance notice of public rulemaking would be issued seeking comment on issues related to greenhouse gas regulation. That EPA document is expected to be issued in the very near future.