A Texas free market foundation has launched a challenge to a key Obama-era environmental regulation that states man-made carbon emissions are a danger to the people's health and welfare.
The litigation arm of the Texas Public Policy Foundation, which claims to represent a coalition of businesses in construction, trucking, energy, manufacturing and related fields, has filed a petition with the Environmental Protection Agency objecting to how the "endangerment rule" was crafted.
This is not an argument over climate change, or human health, and the links to carbon emissions; it is about executive branch overreach, the rule of law, and separation of powers, said Robet Henneke, director of TPPF’s Center for the American Future.
"We filed it because we felt it was legally correct to do so," Henneke told Texas Business Daily.
The core of the argument is that the 2009 "endangerment rule," which states that greenhouse gas emissions produced by man are a danger to humans -- essentially the foundation for all climate change policy -- was introduced without advice from the EPA's Scientific Advisory Board, contrary to Congress' orders. The rule stems from a 2007 Supreme Court ruling that stated the EPA was obligated to regulate greenhouse gases as pollutants, and essentially ordered the agency to determine whether they pose a threat to humans.
Following 14 months of deliberations under the George W. Bush administration, the EPA concluded that the gases produced by humans was a threat to humans. The agency based its findings on information and data produced by the international Intergovernmental Panel on Climate Change, the U.S. Global Climate Research Program, and the National Research Council.
"Federal law requires that this type of regulation must be referred through the Science Advisory Board, which was not done," Henneke, general counsel for the legal center, said.
The petition was filed in early May and the EPA has 180 days to answer or face the threat of legal action, Henneke explained.
The rule has been the subject of legal action, most notably by the American Chemistry Council, which filed a petition with the D.C. U.S. Court of Appeals. In 2012, the court found that the agency had the authority, indeed the obligation, to regulate carbon emissions.
In a separate action before the same court, taken by the Coalition for Responsible Regulation, the failure to refer the rule to the SAB was addressed. The court found that it was an error, but one that would have made no difference to the conclusion drawn by the EPA, and further that the agency is only required under law to refer a matter to the SAB after other arms of the government are canvassed for opinions, which was not done.
TPPF's petition argues that the failure to consult with the SAB "justifies reconsideration" of the rule.
EPA Administrator Scott Pruitt, deeply skeptical there is any link between man's actions and climate change, was previously party as Oklahoma attorney general to lawsuits challenging the "endangerment rule." But he has already faced some criticism for his failure to state he wants to scrap the rule.
Henneke said he was "enthusiastic" about the "administrator's focus on the rule of law, a focus on the EPA operating within its statutory limits."
But while the foundation, and others, can argue over the mechanics around the way the rule was introduced, any attempt to scrap it will be the subject of a legal barrage. Plaintiffs would have to win the argument in court not only that the EPA has little authority to regulate man-made emissions, but that there is, in fact, no link between those emissions and human health and well-being. Plaintiffs would also have to prove no further information on any link has emerged since the rule was introduced in 2009.
"Attempting to overturn the endangerment finding would be like running toward a machine gun,” Michael Gerrard, director of the Sabin Center for Climate Change Law at Columbia University, told ProPublica. “Scientific support was very strong when it was issued in 2009; it has become much stronger since then."