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Wednesday, June 27, 2012 - Page updated at 09:00 p.m.

EPA findings, global-warming rules pass court test

By Seattle Times news services

A federal appeals court Tuesday upheld an Environmental Protection Agency finding that heat-trapping gases from industry and vehicles endanger public health, dealing a decisive blow to companies and states that had sued to block agency rules.

A three-judge panel of the U.S. Circuit Court of Appeals for the District of Columbia declared the agency was "unambiguously correct" that the Clean Air Act requires the federal government to impose limits once it has determined that emissions are causing harm. Washington state, under Attorney General Rob McKenna, signed on to the case in 2009 and 2010 in support of EPA's move classifying the greenhouse gases that contribute to climate change as harmful pollutants.

Industry groups had argued that the science of global warming was not well-supported and that the agency had based its judgment on studies that were basically a compilation and synthesis of thousands of other studies, which made the conclusions unreliable.

But the three-judge panel, led by conservative Chief Judge David Sentelle, seemed to bristle at that contention.

"This argument is little more than a semantic trick," the opinion said. "EPA did not delegate ... any decision-making to any of those entities. EPA simply did here what it and other decision-makers often must do to make a science-based judgment.

"This is how science works. EPA is not required to re-prove the existence of the atom every time it approaches a scientific question."

Aside from the EPA's so-called "endangerment finding," the court upheld related rules setting limits on greenhouse-gas emissions from cars and limiting emissions from stationary sources, such as coal-fired power plants. Opponents also had challenged the agency's timetable for enforcement and its rules singling out big polluters, but the court said it did not have the jurisdiction to block either.

Organizations such as the Electric Reliability Coordinating Council, which represents power plants, have protested the EPA's permitting requirements. They said it will cost billions of dollars and put thousands of jobs at risk.

Washington state has been a player in this battle for almost a decade. In 2003, under then-Attorney General Chris Gregoire, a Democrat, the state joined Massachusetts, California and other states that were suing the Bush administration's EPA because the agency had declined to treat carbon dioxide and other greenhouse-gas emissions as pollutants.

In 2007, Massachusetts won a landmark 5-4 Supreme Court decision that the EPA indeed was required to regulate greenhouse gases unless it could show they weren't contributing to potentially harmful climate changes. As he often does, Justice Anthony M. Kennedy cast the deciding vote in that case.

In 2009, after the EPA reviewed the science and determined carbon dioxide and other emissions, in fact, were contributing to global warming, the chemical industry and 14 states led by Virginia and Texas sued to block the rules. Fifteen states, including Washington — led this time by McKenna, a Republican New York, California, Massachusetts and Oregon, went to court to support the agency.

At this point, the question of regulating climate-changing gases divides industry to some extent, with the oil, gas, coal and utility sectors opposing emissions limits and automakers supporting them. The Alliance of Automobile Manufacturers noted car companies had made huge investments to improve fuel economy and thus reduce carbon-dioxide emissions and that a unified emissions standard was among its "top national priorities."

At the National Association of Manufacturers, Jay Timmons, the president and chief executive, called the ruling "a setback for businesses facing damaging regulations from the EPA." The Clean Air Act was not designed for greenhouse gases, he said.

Environmental groups cheered the decision.

The ruling gives the EPA "a green light to keep moving forward" on a second round of vehicle emissions and a proposed nationwide emission standard for new power plants, said David Doniger, a senior attorney for the Natural Resources Defense Council, an environmental advocacy group.

While Virginia's attorney general, Kenneth Cuccinelli, vowed to appeal the agency's interpretation of the act and its endangerment finding to the Supreme Court, it's unclear whether the plaintiffs will do so, given the emphatic nature of the D.C. circuit court's decision. Sentelle was appointed by President Reagan; he was joined by two President Clinton appointees, David Tatel and Judith Rogers.

"Relying again upon substantial scientific evidence, EPA determined that anthropogenically induced climate change threatens both public health and public welfare," the judges wrote in Tuesday's unsigned opinion. "It found that extreme weather events, changes in air quality, increases in food- and waterborne pathogens, and increases in temperatures are likely to have adverse health effects. The record also supports EPA's conclusion that climate change endangers human welfare by creating risk to food production and agriculture, forestry, energy, infrastructure, ecosystems, and wildlife."

Opponents had argued that the science remained too unsettled to justify regulation, but the judges said Tuesday the 2007 Supreme Court ruling made clear that a lack of clarity was not reason enough to avoid labeling greenhouse gases harmful.

"Indeed, the Court held that the existence of 'some residual uncertainty' did not excuse EPA's decision (under the Bush administration) to decline to regulate greenhouse gases," the opinion stated.

The politics of carbon-dioxide regulation have grown more partisan. When Massachusetts won its Supreme Court case in 2007, the state's governor was Mitt Romney. As the presumptive Republican nominee for president, he since has backed away from his earlier position that human-caused global warming is under way.

According to his website, one of his policy goals now is to amend the Clean Air Act, the critical law under which the EPA is now acting, "to exclude carbon dioxide from its purview."

Compiled from The New York Times, The Washington Post and the Tribune Washington bureau. Seattle Times environment reporter Craig Welch also contributed.

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