Jan. 11--WASHINGTON -- Seven years ago, a group of Eastern and Western states sued the federal government to require the regulation of greenhouse gases. The resulting Supreme Court decision paved the way for the first limits on carbon-dioxide emissions that took effect this month.
Now a smaller gang of Southern states, with Texas leading the pack, is aggressively challenging those rules. Joining forces with oil and mining companies that are subject to the rules, the states have sued the Environmental Protection Agency over every step of its rulemaking process, including the critical "endangerment finding" that greenhouse gases threaten public health and welfare.
Texas has filed nearly a dozen legal challenges of EPA regulations over the past year, mostly over climate-change rules. Most notably, Texas is the only state that has refused to set up a program that requires big polluters to get permits for greenhouse gas emissions.
Environmental groups say they expected that some states and business groups would continue to fight carbon limits, even after the Supreme Court's decision in Massachusetts vs. EPA found that greenhouse gases are pollutants under the Clean Air Act. Many green groups blame Texas' opposition on Republican politicians who oppose much of the Obama administration's agenda.
"What these attacks have done is essentially kind of relitigate the issues in Massachusetts vs. EPA and [challenge] the authority that EPA has," said Joe Mendelson, global warming policy director for the National Wildlife Federation.
"There are a little bit different legal questions involved, but the sentiment is one in which you are trying to undo what the Supreme Court did," he said.
Aides to Attorney General Greg Abbott deny that Texas is revisiting the Supreme Court case. They argue that the EPA went astray when it opined that greenhouse gases endanger public health, which the court did not address.
"That is where we differ," said Lauren Bean, a spokeswoman for Abbott, who is overseeing Texas' litigation. "The justices flatly refused to rule that emitting the naturally occurring gas endangered the public health or welfare."
Legal doctrine gave the states in Massachusetts vs. EPA special standing to sue the federal government to force it to address carbon emissions. The states were acting as "parents" of their citizens, defending the health and welfare of people affected by global warming.
The states now suing the EPA have similar standing but are arguing the flip side of the issue, said Pat Parenteau, professor of environmental law at Vermont Law School.
"In this case, you could say the states are defending their economies against the damage caused by regulation," he said.
Texas' lawsuits are among 78 legal challenges that have been filed against four key climate-change regulations, according to the Center for Climate Change Law at Columbia Law School.
Two other states, Alabama and Virginia, have filed their own legal challenges. Other energy-producing states, including North Dakota and South Dakota, have filed briefs supporting Texas' challenges.
Shannon L. Goessling, executive director of the Southeastern Legal Foundation, said Texas' involvement in the lawsuits is essential to illustrate a key argument -- that EPA overreach will harm the states.
"The role they are playing is exceedingly important," said Goessling, whose conservative group has also challenged multiple EPA regulations. The rules "interfere in state sovereignty; they interfere in free markets."
Critics say Texas' legal challenges would actually make things worse for businesses if they prevail. That's because Texas and others attacked the EPA's "tailoring rule," which raised the threshold for regulation so that only the largest sources of pollution would fall under the rules.
Should a court invalidate the tailoring rule, nearly all sources of greenhouse gas emissions, including schools and farms, would be subject to the rules. That would force them to spend money on expensive emission-control equipment or energy-efficiency upgrades.
"Texas and the industry groups are not harmed by the tailoring rule, they are helped by it," said David Doniger, climate policy director for the Natural Resources Defense Council. He frequently criticizes Texas' challenges on his blog.
"If Texas wins, what do you win? You are making the thing retroactive, and you bring small sources into the ambit of it. Nobody on our side is asking for either of things."
Abbott and other conservative lawyers maintain the tailoring rule is vulnerable because the EPA "rewrote" the Clean Air Act to come up with it. If it's struck down, the chaotic results will prove that regulation of greenhouse gas emissions is "unmanageable," Bean said.
"Ultimately what we are doing is protecting the state's economy and trying to preserve thousands of Texans' jobs from this unprecedented and unlawful overreach by the federal government," Bean said.
Texas has also gone solo in its fight against the EPA. The state has refused to award permits for greenhouse gas emissions, which prompted the EPA to announce last month that it would take over the job.
But Texas has challenged that decision, too. Texas has asked a federal appeals court to halt the award of permits, saying the EPA failed to give proper public notice before it seized the permitting authority. Environmental groups say Texas knew for months that it needed to rewrite its state clean-air plan to cover greenhouse gases.
The Court of Appeals for the District of Columbia Circuit is due to rule on Texas' request as early as today.
If Texas wins the stay, neither the EPA nor Texas would award greenhouse-gas permits in Texas, at least temporarily. That would amount to a de facto construction moratorium for 167 facilities that could need permits to proceed this year, according to state officials.
"The very purpose of EPA's actions is to prevent such a moratorium, which will take effect ... unless EPA steps in to avoid it," Doniger wrote on his blog last month. "EPA is offering Texas a life-preserver and, bizarrely, Texas is treating it like a torpedo."
If Texas wins a stay, other states that oppose the agency's climate-change agenda could challenge the permit program as well, according to attorneys watching the cases.
"It could lead to a train wreck," said Kevin P. Holewinski, a Washington attorney who represents utilities in climate-change lawsuits.
"It creates a lot of regulatory ambiguity and uncertainty about the major pieces of the Clean Air Act program, and whether or not the act is appropriate to regulate greenhouse gases," he said.
Texas' other challenges are viewed more skeptically. Courts are unlikely to strike down the "endangerment finding," according to lawyers for environmental groups and industry clients.
Texas and other plaintiffs cite hacked e-mails from a British university that appeared to show scientists manipulating some climate data. But experts say the courts grant broad latitude to the EPA to interpret scientific data and set regulations.
The endangerment finding "is close to a slam dunk for EPA," said Holewinski. "The challengers have a difficult burden on that."
Parenteau agreed. "Even if you could say there is a responsible minority of scientists that question the science that EPA is using, that is not enough for a court to say, 'I'll side with those scientists against EPA,' " he said.
Doniger said he doesn't think that any of Texas' legal challenges will prevail.
"These cases are really weak," he said. "The term I use is 'fashion accessories' -- to dress up the political arguments that you will see play out in the new Congress, especially in the House."
House Republicans have promised to repeal EPA regulations that, according to the GOP, will hurt job growth and drive up energy costs. In an interview with Fox Business last week, Abbott said he would keep fighting if Congress doesn't pass legislation to eliminate the new rules.
"We're going to take this fight all the way to the United States Supreme Court if Congress does not eliminate the issue beforehand," he said.
Key EPA climate-change regulations
A number of states, business groups and conservative foundations have challenged four key climate-change regulations in court since late 2009. Texas is the only state that has challenged all four rules:
Endangerment finding: The Environmental Protection Agency announced in December 2009 that six greenhouse gases emitted from motor vehicle engines endanger public health and welfare.
Tailpipe rule: Based on the endangerment finding, the EPA proposed the first-ever carbon-dioxide emission standards for passenger cars and light-duty trucks, covering model years 2012 through 2016.
Timing rule: Under this provision, EPA regulates greenhouse gas emissions from stationary sources under the Clean Air Act.
Tailoring rule: This rule says the EPA would "tailor" its regulation of greenhouse gases to cover only the largest stationary sources -- those responsible for 70 percent of national carbon emissions.
SOURCES: Columbia Law School Center for Climate Change Law; Dallas Morning News research
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