In a divided opinion for the US Court of Appeals for the DC Circuit, Judge Tatel writes that the Environmental Protection Agency should be regulating carbon dioxide emissions from sources other than fossil fuels. The EPA had instead decided to study and defer regulation of biogenic sources (which come from recently living organic matter — think garbage, wood, grains, etc.) But the court holds that waiting to regulate these sources violates the clear language of the Clean Air Act.
Environmental groups brought a lawsuit against EPA’s decision to defer regulation, arguing that this deferral is allowing new facilities to emit great unregulated amounts of biogenic CO2, contributing to global warming. In ruling for the environmental groups, the court found that the issue was ripe for review, and that the plain text of the Clean Air Act did not allow the EPA to take its regulation one step at a time. If the EPA is going to regulate power plants burning coal, for example, they must also regulate power plants burning trash.
Judge Kavanaugh concurred, saying the result was compelled by Circuit precedent, some of which he disagreed with. In particular, he noted his dissent in an earlier decision that gave the EPA authority to regulate CO2 emissions in certain power plants.
Judge Henderson dissented, writing that it would be best to withhold judgment because the EPA’s deferral was going to end in 2014 anyway. She also wrote that the government should have broad authority to implement its regulations one step at a time with careful study, and that the argument that many facilities would escape regulation was overblown.
The court vacates the EPA’s decision to defer regulating biogenic carbon dioxide. Under the Clean Air Act, they must regulate such sources. But the practical effects of this decision are unclear for the moment — a lot depends on how EPA responds to it, and how quickly.
