Pollution decisions a mixed bag

Armed with two U.S. Supreme Court decisions delivered in April, environmental attorneys have asked courts across America to force utility companies and automakers to tighten pollution controls.
But decisions in lower courts since the landmark rulings have offered a mixed bag for environmentalists and industry. While environmentalists recently celebrated what they are calling a seminal victory in a car emissions case, they also suffered disappointing defeats in their bid to push more stringent carbon dioxide controls on new utility power plants.
Attorneys representing environmental groups say a myriad of factors led to the differing results.
Power plants and automobiles “are controlled by two different chapters of the Clean Air Act,” said Steve Hinchman, an attorney for the Conservation Law Foundation who represented the group in a recent Vermont case over auto emissions control standards.
The April Supreme Court decisions were hailed at the time as “the functional equivalent for the environmentalists of winning two national championships in the same day,” according to Richard Lazarus, a Georgetown University Law Center environmental professor, and director of its Supreme Court Institute.
On April 2, the court held that the Environ-mental Protection Agency not only has the authority to regulate greenhouse gas emissions from automobiles, but without a reasonable explanation as to why it won’t or can’t – and several explanations proffered by EPA were dismissed in the opinion – the agency has the obligation to regulate the pollutants. (Massachusetts v. EPA, (127 S. Ct. 1438).)
The same day, the court ruled that the Clean Air Act required a utility company seeking modifications to a coal-fired electricity generating plant to go through the usual permitting process, even though the plant didn’t increase its annual emission rates. (Environmental Defense v. Duke Energy Corp., (127 S. Ct. 1423).)
Emboldened by these opinions, environmental groups sought to apply the same reasoning to suits against proposed new coal-fired power plants. The results of these challenges were disappointing.
In Illinois, the Sierra Club filed suit challenging the permitting review process for a new Peabody Energy power plant, arguing that EPA officials should have considered whether the plant must use low-sulfur pollution control technology.
But in August, the 7th Circuit ruled the EPA did not have to consider the use of low-sulfur coal, because the low-sulfur technology would require “significant modification” to the plant. (Sierra Club v. EPA (No. 06-3907).)
Days earlier, a state administrative judge in Georgia rejected a similar challenge by the Sierra Club and other environmental groups. The groups had argued that a proposed coal-powered power plant was subject to the Clean Air Act’s “best available control technology” provisions. The judge rejected the argument in a bench ruling issued immediately after a hearing.
These decisions suggest that the viability of similar challenges pending in other states is doubtful, and leave environmentalists and their attorneys fearing that the Supreme Court’s decisions will not be as effective in forcing tighter pollution controls as they had hoped.
That changed a little recently, when a U.S. District Court in Vermont upheld the state’s automobile greenhouse gas emissions standards, ruling against automakers who claimed the state rules were preempted by federal law and required the use of technology that automakers are unable to adhere to. (Green Mountain Chrysler Plymouth Dodge Jeep v. Crombie, No. 2:05-CV-302)
The 244-page ruling followed a 16-day trial where automakers were given the opportunity to challenge the regulations in Vermont and in a dozen other states which had also adopted California’s heightened greenhouse regulation standards.
Judge William Sessions III rejected automakers’ claim that adherence to the standards would do little to reduce pollution and would bankrupt the companies in the process.
“History suggests that the ingenuity of the industry, once put in gear, responds admirably to most technological challenges,” Sessions wrote, adding that given the “history of compliance with previous technological challenges, and the state of the record, the court remains unconvinced automakers cannot meet the challenges of [these] regulations.”
Environmental attorneys see the decision as an important one, because it followed a full trial over the automakers’ reasons for resisting tighter emissions controls.
Since the California standard is the toughest on record, other courts that hear similar suits will pay close attention to Judge Sessions’ findings, they predict.
“Absolutely, this case is of national importance,” said Matt Pawa, who represented the Natural Resources Defense Council, the Sierra Club and Environmental Defense in the Vermont trial. “In environmental law you can’t overstate the importance of a 240-plus exegesis after a trial on the facts.”
David Bookbinder, chief climate counsel for the Sierra Club, said automakers put on their best case at trial, making future arguments before other courts (and before Congress, which is currently mulling a bill to toughen auto emissions standards) a harder sell.
“The automakers put on their whole case in 16 days of testimony, with dozens of witnesses and thousands of exhibits, as to whether or not California automobile emissions standards are technically and economically feasible,” Bookbinder said. “The judge finally looked at all the evidence and said to them: ‘No. I don’t believe you.’”
Dave McCurdy, president of the Auto Alliance, which represents the automakers, said the group will likely appeal.
“Federal law is designed to ensure a consistent fuel economy program across the country,” McCurdy said in a statement. “It makes sense that only the federal government can regulate fuel economy. Automakers support improving fuel economy standards nationally, rather than piecemeal, and will continue to work with Congress, the National Highway Traffic Safety Administration and EPA to reduce our oil dependence while increasing fuel economy.”
Environmental attorneys face a more difficult challenge in the power plant cases because objections to utility plant projects are local in nature and must be made one permitting process at a time.
“It’s more of an individual case-by-case situation,” Bookbinder said. “There is no one individual case that has national repercussions” for power plant standards.
In the meantime, the Sierra Club plans to keep challenging permitting authorities to hold the utility companies to higher standards until a legislative solution is found.
“Our goal is to keep as many of the coal plants from being built as possible until either Congress or EPA establish a clear standard for [carbon dioxide] emissions controls for power plants,” he said.