Sixteen petitioners, representing three states and multiple industry associations and businesses, think tanks, and lawmakers, filed lawsuits by last Tuesday’s deadline against the U.S. Environmental Protection Agency (“EPA”) challenging the agency’s finding that greenhouse gases (“GHGs”) endanger health and welfare and thus can be regulated under the Clean Air Act. The three states are Alabama, Texas and Virginia.  The trade associations are the American Farm Bureau Federation, the American Iron and Steel Institute, the U.S. Chamber of Commerce, the National Mining Association, the Ohio Coal Association, the Utility Air Regulatory Group, and a coalition of trade associations including the National Association of Manufacturers, American Petroleum Institute, the Brick Industry Assocaition, the Corn Refiners Association, the National Association of Home Builders, the National Oilseed Processors Association, the National Petrochemical and Refiners Association, and the Western States Petroleum Association. 

Also filing were Gerdau Ameristeel; Peabody Energy Company; a group of conservative interest groups consisting of the Competitive Enterprise Institute, FreedomWorks and the Science and Environmental Policy Project; a group comprised of the Southeastern Legal Foundation, twelve Republican congressmen, and a number of businesses and business groups; and a group consisting of the Coalition for Responsible Regulation, three coal companies, the National Cattlemen’s Beef Association, the Industrial Minerals Association-North America, and Great Northern Project Development, L.P.

The Endangerment Finding is the direct trigger for EPA regulation of GHG emissions from new motor vehicles.  That regulation continues to be expected by the end of March of this year.  Because that regulation is also expected to trigger regulation of GHG emissions from stationary sources under the Prevention of Significant Deterioration (“PSD”) air permit program, EPA is also expected to issue its “tailoring” rule by the end of March which will attempt to limit GHG regulation under the PSD program to larger stationary sources, those emitting more than 25,000 tons per year of GHGs.  Observers believe that the Endangerment Finding litigation may be held in abeyance until EPA issues its motor vehicle rule and tailoring rule.

Additionally, several petitions have been filed with EPA asking the agency to reconsider the endangerment finding in light of the recent revelations about the reports of the Intergovernmental Panel on Climate Change contained in emails and other information from the University of East Anglia Hadley Climatic Research Units.  Reconsideration petitions have been filed by the Competitive Enterprise Institute, the Southeastern Legal Foundation on behalf of a number of Georgia congressmen, the Pacific Legal Foundation, and Peabody Energy Company.  Peabody’s petition was the most extensive of these petitions, running to more than 200 pages.  There is no set timetable for EPA action on these petitions.