WASHINGTON—Texas and 14 other states clearly want to deep-six the endangerment finding.
But legal experts who keep an eagle eye on Clean Air Act issues agree that attempts to bury it won't succeed. The Environmental Protection Agency's December 2009 finding that heat-trapping gases pose a danger to human health and welfare is likely impenetrable to court challenges because agency scientists did their homework so thoroughly, they say.
"All of us watching this would be absolutely stunned with an appellate court overturning the endangerment finding," environmental law professor Pat Parenteau told SolveClimate News in an interview. "Based on everything I know about this case, it's a 90 percent winner for the government. You can never say 100 percent because weird things can happen in litigation."
Parenteau, who specializes in EPA and Congress at the Vermont Law School in South Royalton, is referring to the opening legal brief Texas filed May 24 with the U.S. Court of Appeals for the D.C. Circuit. It's the appellate court designated for handling direct challenges to EPA's authority.
The states argue in their 41-page document that the endangerment finding should be overturned because it is not only arbitrary and capricious but also a violation of the Clean Air Act. They claim EPA refused to define or measure endangerment and refused to consider adaptation and mitigation as solutions to the effects of climate change.
Other states joining the suit are Alabama, Florida, Indiana, Kentucky, Louisiana, Michigan, Mississippi, Nebraska, North Dakota, Oklahoma, South Carolina, South Dakota, Utah and Virginia.
Why Courts Will Back EPA
Columbia University environmental law professor Michael Gerrard echoes Parenteau's prediction about Texas's court challenge being a steep uphill climb where odds favor EPA's irrefutable proof.
"Overturning the endangerment finding would mean finding that EPA did not have a solid basis" for its decision, said Gerrard, director of the university's Center for Climate Change Law, in an interview. "EPA has heaped up enormous volumes of evidence on one side. The evidence on the other side is exceedingly thin.
"EPA is the agency that has the scientists with the expertise," he continued. Before issuing the endangerment finding they "looked at it, relooked at it and re-relooked at it. They seriously examined critiques and still ended up in the same place."
Texas's lawsuit challenge covers a very traditional administrative law question, Parenteau said, adding that it's a prime example where deference to an agency such as EPA is "at its absolute peak" because the courts don't sit as the final arbiters of science.
As long as EPA had a reasonable basis to conclude that carbon dioxide and other greenhouse gases may reasonably be anticipated to threaten public health or the environment, he explained, the agency is authorized to make an endangerment finding.
"EPA didn't leave any stone unturned," Parenteau said, adding that the agency's massive documentation weighed in at 900 some odd pages of global warming research. "There isn't any science they missed. They acknowledged everything."
Lone Star State Politics at Play
Both Parenteau and Gerrard are on the same page with environmental watchdogs who interpret the challenge to EPA's endangerment finding as having more of a political bent than a legal one.
"Fundamentally, this is [Texas Gov. Rick] Perry and his pals pandering to the polluters," Tom "Smitty" Smith, director of Public Citizen's Texas office, told Solve Climate News in an interview from Austin. "They're picking their pockets for campaign contributions. Unfortunately, the rest of the world loses in this dash for cash."
Smith is referring to speculation that Perry is considering a presidential campaign on the Republican ticket and that Texas Attorney General Greg Abbott, who is heading up the lawsuit, is considering a run for Lone Star State governor.
One of the planks of Perry's platform conforms with a popular GOP theme that environmental regulations are out of control and strangling the nation’s business community, Smith said.
Smith Counters Legal Experts
Unlike the legal experts, Smith said he thinks the endangerment finding is indeed endangered.
He views Abbott's current challenge as just the first shot in an attempt to force disagreement in the appellate courts, which would force the Supreme Court to revisit the issue of whether greenhouse gas emissions are indeed pollutants.
"We call it the spaghetti theory," said Smith, who has been in charge of his Texas office since 1985. "If you throw it at the wall and it sticks, you'll end up having confusion in the courts and the Supreme Court will have to resolve it. It's death by 1,000 cuts, or in this case, death by 1,000 courts."
By tying up issues in the courts, he said, polluters have succeeded for decades at keeping regulations involving mercury, sulfur dioxide, nitrogen oxide, particulates and other harmful emissions at bay.