The Other Health Case: D.C. Circuit Judges Reject Challenges to EPA Rules on Greenhouse Gases

July 6, 2012
Guest Post

By Glenn Sugameli, Staff Attorney, Defenders of Wildlife's Judging the Environment. (Sugameli founded in 2001 and still heads the environmental community's Judging the Environment project and website on federal judicial nominations and related issues.)

 As the Austin American-Statesman’s editorial board commented in "Greenhouse gas ruling timely, right":

Overshadowed last week by U.S. Supreme Court rulings on health care and immigration, but just as significant in its own right, was the unanimous decision by a three-judge panel of the U.S. Court of Appeals in Washington, D.C., affirming federal regulations of greenhouse gases. The three judges — one a Ronald Reagan appointee … said the Environmental Protection Agency was "unambiguously correct" to set rules to reduce greenhouse gas emissions, given global warming's potential harm to the public's health.

The Salt Lake Tribune’s editorial, "Another health case; Appeals court rightly stands by EPA," agreed: "While most of the country was waiting for a court ruling that would affect how many Americans insure their health care, another court was handing down an order that will go a long way to ensure the health of the entire planet."

This importance of the issues in Coalition for Responsible Regulation v. Environmental Protection Agency is augmented by synergistic factors. These include: (1) the court that decided them; (2) the judges who joined the unsigned per curiam opinion; (3) the high likelihood that their ruling is the final judicial word; (4) the very strong language the judges used; and (5) the decision’s impact in confirming the scientific facts of climate change.

First, Congress has entrusted the D.C. Circuit with exclusive jurisdiction in many environmental areas, including these challenges to nationwide EPA Clean Air Act standards. Thus, the challengers’ only judicial options are rehearing by the panel or rehearing en banc by the entire D.C. Circuit, or a petition for certiorari seeking Supreme Court review. 

According to the D.C. Circuit Review, "the most fundamental reason" for the Circuit’s recent low en banc rate of only one case in both the current term and the previous term

is the dwindling number of active judges eligible to vote for rehearing. (This should be… a common argument in favor of confirming D.C. Circuit nominees.) Since Judge [Douglas] Ginsburg took senior status last October, the court has had only eight active judges. That means that when a panel of three active judges issues a unanimous decision, as in [this case], all of the other active judges on the court must vote in favor of rehearing for the case to go en banc–assuming the panel members vote to defend their decision.

President Barack Obama nominated Caitlin Halligan and Sri Srinivasan on June 11 to fill two D.C. Circuit vacancies. But, as the very conservative Richmond [VA] Times-Dispatch editorial board decried, Senate Republicans successfully filibustered Halligan in 2011 "[d]espite her apparent qualifications."

Second, as Garrett Epps stressed in The American Prospect, "The three-judge panel included Judge David Sentelle, one of the most conservative judges on the federal bench." Jeffrey Rosen has described Sentelle as a "pillar of the Constitution in Exile movement" who joined a recent radical concurring opinion by D.C. Circuit Judge Janice Rogers Brown that "made clear her disagreement with the past 75 years of Supreme Court cases directing judges to defer to Congress and the executive branch on economic regulation." This extreme Brown/Sentelle concurrence has been widely and strongly condemned; conservative Orin Kerr noted that Brown and Sentelle "conten[ded] that the Supreme Court should overturn its rational basis caselaw in the economic area and return to a Lochner-era regime of judicial scrutiny for economic regulations."

Third, the ruling logically follows the Supreme Court’s Massachusetts v. EPA decision. Even the very conservative Jonathan H. Adler concluded that: "This decision will be the last stop for most, if not all, of the industry challenges to the GHG rules. En banc and cert petitions may get filed, but I can’t see either the full D.C. Circuit or the Supreme Court having much interest in the endangerment finding or the EPA’s mobile source rules."

Fourth, as the Houston Chronicle’s editorial Time to accept the science on global warming described:

Court opinions rarely come as sharply worded as the one a federal appeals court issued last Tuesday: The Environmental Protection Agency, the panel ruled, is "unambiguously correct" that the Clean Air Act requires the agency to regulate greenhouse gases. ... the three judges … led by conservative Chief Judge David Sentelle, bristled at the idea that assessments by some of science's most credible groups, including the National Research Council, weren't enough. "This is how science works," the opinion snapped. "EPA is not required to re-prove the existence of the atom every time it approaches a scientific question."

Fifth, the court’s 82-page opinion confirmed the science and the need for action. The New York Times’ editorial, "A Court Rules for the Planet," called the ruling "a decisive victory for the Obama administration and a devastating blow to polluters. It vindicated the administration’s strategy of controlling emissions through regulation and showed good sense at a time when both the agency and the science of global warming are under relentless Congressional attack." The Washington Post’s editorial, "The EPA wins, for science’s sake," endorsed the "ringing ruling concerning America’s response to global warming that … emphatically dismisses arguments that the science is too uncertain to justify federal action."

The Detroit Free Press’ editorial, "As the world warms ..." concluded that "the arguments against controls on global warming gases look increasingly foolish." The Baltimore Sun’s editorial celebrated the "big win for climate change science – and public health" that “once again demonstrated that the science of climate change … is virtually impossible for fair and reasonable people to deny."

Editorial boards ridiculed state attorneys general who joined the failed challenge. The Roanoke [VA] Times’ editorial, "Science prevails in greenhouse gas suit; A federal court rejected Attorney General Ken Cuccinelli's legal challenge," embraced the court’s "much-deserved smack down …. Real science underlies the dire warning of climate change, and the delirium of deniers cannot change that. ... Virginia Attorney General Ken Cuccinelli[‘s] sound rejection at the court is embarrassing to the commonwealth, but such is the cost of electing a quixotic crusader who tilts against the windmills of science."

Florida AG Pam Bondi was the target of a Tampa Bay Times editorial: "Court reins in big polluters; now Bondi should": "A federal appeals court has struck a commanding blow for public health, science and the rule of law, sending a sharp rebuke to states like Florida that continue to side with big polluters."

And Texas AG Greg Abbott bore the brunt of the Austin American-Statesman and Houston Chronicle editorials quoted above, as well as the Dallas Morning News editorial, "Let’s move on from EPA challenge": "The unanimous ruling last week leaves little wiggle room for climate skeptics such as Gov. Rick Perry and Attorney General Greg Abbott, who led the state down this litigious dead end by questioning the EPA’s scientific judgment. ... the state would be better served if it spent less time in court and more time making sure Texas is ready for the future."