Texas and Virginia have joined business groups and others jostling on the courthouse steps in the run-up to a legal battle over whether the Environment Protection Agency erred in finding that greenhouse gases pose a danger to public health and welfare.
Both states filed petitions attacking the EPA's "endangerment finding" by disputing its scientific underpinnings. Texas argued in its filings that the agency relied upon "tainted data" that cast doubt on the validity of science that shows the global climate is shifting and warming.
"This legal action is being taken to protect the Texas economy and the jobs that go with it, and [to] defend Texas' environmental successes against federal overreach," Gov. Rick Perry told reporters at a press conference Tuesday after the filing.
About a dozen other groups, including some connected to fossil fuel industry, are also opposing the EPA endangerment finding.
Essentially, the EPA concluded that science had shown that greenhouse gases pose a danger to human health and welfare. That conclusion legally required the agency to regulate greenhouse emissions under the Clean Air Act, the US Supreme Court ruled in 2007.
"The EPA is making a decision here that it was directed to make by the highest court in the land," says Vicki Patton deputy general counsel of the Environmental Defense Fund, an advocacy group based in New York. "The EPA has made a rigorous decision based on a bedrock foundation of science and law."
At least 16 states and numerous environmental organizations are lining up to file briefs in defense of the EPA's position, Ms. Patton says.
The court cases come as Congress seems stymied over climate and energy legislation that would substitute market-based mechanisms to control greenhouse gas emissions rather than EPA regulation.
Legislation has emerged in both the House and Senate to remove EPA authority to regulate greenhouse gas emissions. But it currently enjoys little support and, even if passed, would face a potential veto by President Obama.
"These attacks show a growing realization by many of these groups that the action is going to be at EPA – not Congress – when it comes to climate strategy," says Frank O'Donnell, president of Clean Air Watch, an environmental group. "Corporations are turning their fire to EPA to sidetrack any effort to limit emissions. They apparently believe cap-and-trade [climate] legislation is, if not a dead duck, so wounded it may never fly in Congress."
But legal challengers to the EPA finding will have several formidable hurdles to overcome, legal experts say.
"It will be difficult for the petitioners to sustain their legal challenges, an uphill battle," says Kyle Danish, climate change and emissions trading practice coordinator and a partner at Van Ness Feldman, a Washington law firm.
For one thing, states and organizations will have to demonstrate that they have legal standing to bring the legal actions before the US Court of Appeals for the District of Columbia Circuit. That means they have to show they are being directly harmed by the endangerment finding now.
"One challenge [for] the petitioners is to show some injury or way they are directly affected," Mr. Danish says. "It's a question whether the endangerment finding itself has a direct impact on these parties."
States would have a somewhat easier time showing standing than individual groups, he says. But even doing that isn't all that's required. The groups would have to show that the EPA's finding was arbitrary and capricious, or that the agency didn't look at all the evidence or do a good job of evaluating it.
"The courts have set a high bar and tend to defer to scientific and technical findings by an agency within its expertise," he says.
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