• Petitioners Seek Stay of EPA Greenhouse Gas Regulation
  • September 20, 2010
  • Law Firm: Troutman Sanders LLP - Atlanta Office
  • Three separate groups of petitioners filed motions in the D.C. Circuit Wednesday to stay EPA’s program of greenhouse gas (“GHG”) regulation.

    Four separate challenges to EPA rules regulating GHGs are currently being litigated before the D.C. Circuit.  In December of 2009, EPA made a determination that automobile GHG emissions endanger public health and the environment (the “Endangerment Finding”).  In April of this year, EPA and the National Highway Transportation Safety Administration (“NHTSA”) issued a joint rule regulating GHG emissions from light-duty vehicles (the “Tailpipe Rule”).  Also in April, EPA issued a rule reconsidering the so-called “Johnson Memorandum” (see February 20, 2009 edition of the WER) and interpreting the Clean Air Act as requiring that PSD permitting requirements for stationary sources will be triggered when the Tailpipe Rule’s regulation of automobile emissions takes effect on January 2, 2011 (the “Johnson Memorandum Reconsideration”).  And in June, EPA issued a rule “tailoring” the GHG emission thresholds for PSD and Title V permitting of major stationary sources (the “Tailoring Rule”).  Each of these rules was challenged in the D.C. Circuit by dozens of petitioners, including numerous industry groups, trade associations, businesses and states.

    In the first stay motion, a large group of trade associations asked for a stay of the Johnson Memorandum Reconsideration, the Tailoring Rule, and the part of the Tailpipe Rule that triggers stationary source regulation under PSD and Title V by making GHGs “subject to regulation” under the CAA.  It does not seek to stay the Endangerment Finding or the regulation of GHG emissions from automobiles.

    In the second stay motion, a group of coal companies and conservative interest groups filed a motion to stay all of EPA’s GHG regulation, including the Endangerment Finding, the Johnson Memorandum Reconsideration, the Tailoring Rule, and the Tailpipe Rule, including its regulation of automobile GHG emissions.

    Finally, the State of Texas filed two motions, one to stay the Tailoring Rule and another to stay the other three rules.

    A resolution on the stay motions will not come soon, as EPA has requested 40 days to respond to the stay motions, after which the movants will have an opportunity to reply.  If the Court does grant any of the motions, GHG regulation under the PSD and Title V programs will not begin on the scheduled date of January 2, 2011.