Numerous industry groups, business associations, environmental advocacy groups and public interest organizations have petitioned the U.S. Court of Appeals for the District of Columbia Circuit to review EPA’s reconsideration of the so-called “Johnson Memorandum.” In its reconsideration, EPA determined that greenhouse gases (“GHGs”) would be subject to regulation under the Prevention of Significant Deterioration (“PSD”) and Title V permit programs as of January 2, 2011. In the related tailoring rule, which was published in the Federal Register on Thursday, EPA established a process for phasing in PSD and Title V requirements, including the requirement to do Best Available Control Technology for GHGs, beginning on January 2, 2011.
Challenges to the Johnson Memorandum Reconsideration action were filed by numerous business groups from across the economy, including general business groups such as the Chamber of Commerce and the National Association of Manufacturers. It is likely these groups intend to challenge the validity of EPA regulation of GHGs at all, as opposed to the specific date that such regulation will begin. Also filing challenges were the State of Virginia and a coalition of 15 Republican congressmen led by the Southeastern Legal Foundation.
The only environmental party challenging the rule was the Center for Biological Diversity. The Center likely intends to argue that EPA wrongfully did not commence GHG regulation many years ago. A number of other environmental parties made similar claims in a lawsuit directed against the Bush Administration EPA. That lawsuit was stayed pending EPA reconsideration of its GHG policy when the Obama Administration took office.
Like the currently pending lawsuits challenging the endangerment finding, this new round of lawsuits is likely to take two or more years to resolve. It is also expected that there will be lawsuits challenging other facets of EPA regulation of GHGs, including the tailoring rule and EPA’s regulation of automobile GHG emissions.