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Can the US Environmental Protection Agency enforce its ambitious greenhouse gas emission rules under the Clean Air Act? Yes, according to the Endangerment Opinion of the District of Columbia US Court of Appeals:

“Following the Supreme Court’s decision in Massachusetts v. EPA, 549 U.S. 497 (2007)—which clarified that greenhouse gases are an “air pollutant” subject to regulation under the Clean Air Act (CAA)—the Environmental Protection Agency promulgated a series of greenhouse gas-related rules.

First, EPA issued an Endangerment Finding, in which it determined that greenhouse gases may “reasonably be anticipated to endanger public health or welfare.” See 42 U.S.C. § 7521(a)(1).

Next, it issued the Tailpipe Rule, which set emission standards for cars and light trucks.

Finally, EPA determined that the CAA requires major stationary sources of greenhouse gases to obtain construction and operating permits. But because immediate regulation of all such sources would result in overwhelming permitting burdens on permitting USCA Case #09-1322 Document #1380690 Filed: 06/26/2012 Page 15 of 82 16 authorities and sources, EPA issued the Timing and Tailoring Rules, in which it determined that only the largest stationary sources would initially be subject to permitting requirements.

Petitioners, various states and industry groups, challenge all these rules, arguing that they are based on improper constructions of the CAA and are otherwise arbitrary and capricious.

But for the reasons set forth below, we conclude: 1) the Endangerment Finding and Tailpipe Rule are neither arbitrary nor capricious; 2) EPA’s interpretation of the governing CAA provisions is unambiguously correct; and 3) no petitioner has standing to challenge the Timing and Tailoring Rules. We thus dismiss for lack of jurisdiction all petitions for review of the Timing and Tailoring Rules, and deny the remainder of the petitions.”

This is a major victory for the Obama Administration and for the EPA, but will likely be appealed to the notoriously conservative US Supreme Court.

The EPA has been frank that it would have preferred Congress to enact greenhouse gas legislation, rather than trying to shoehorn GHG regulation into the Clean Air Act, which was originally designed for toxics. But since Congress is paralyzed in gridlock, the Obama Administration decided to try to use the tool they have, which is the Clean Air Act.

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