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EPA nomination sets stage for court struggles on climate change

The battle over climate change is heating up in Washington – as President Barack Obama’s nomination of Gina McCarthy to lead the Environmental Protection Agency sets the stage for a struggle over regulations intended to reduce carbon dioxide and other emissions.

A big part of McCarthy’s job, Obama said as he introduced her Monday at the White House, will be to ensure that “we’re doing everything that we can to combat the threat of climate change.”

In his inaugural address, Obama had already signaled that climate policy would be a high priority for his second term.

But Senate passage of a climate change bill that might impose new costs on the oil, coal and gas industries seems unlikely, especially since the Republican-majority House would be nearly certain to oppose any such effort.

Seeming to acknowledge this reality, Obama said in his State of the Union address, “I will direct my Cabinet to come up with executive actions we can take, now and in the future, to reduce pollution, prepare our communities for the consequences of climate change, and speed the transition to more sustainable sources of energy.”

The EPA will be at the center of the climate change action.

Kyle Danish, a partner in the Van Ness Feldman law firm in Washington who specializes in climate change policy, said he expected McCarthy to face tough questioning during her confirmation hearing before the Senate Environment and Public Works Committee. But he thinks it unlikely that Republicans will block her.

“Though McCarthy is by no means pro-industry, industry groups generally respect her and believe that she gives them a fair hearing,” Danish said.

Assuming she is confirmed, McCarthy can begin to try to transform Obama’s climate change rhetoric into regulatory reality.

“Of the four big priorities that the president is sketching out – climate change, the budget, gun control, and immigration, climate change is the one area where the president already has in existing law a lot of tools to address the problem,” said David Doniger, policy director for Climate and Clean Air at the Natural Resources Defense Council (NRDC), an environmental advocacy group. In its mission statement the NRDC says, “Climate change is the single biggest environmental and humanitarian crisis of our time.”

Ultimately, Doniger said, legislation will be needed to bring about deep reductions in greenhouse gas emissions, or carbon pollution, “but you can get a very big start on that under the Clean Air Act principally and under some of the energy efficiency laws.”

Doniger said power plants account for 40 percent of carbon emissions and “that’s where the EPA under Gina McCarthy will need to focus. As you look at where the carbon pollution comes from on the industrial side, the single largest thing is coal- and gas-burning power plants.” The NRDC has proposed a plan for using the Clean Air Act to cut that pollution by a third by 2025.

Last year, the EPA proposed a greenhouse gas emissions standard for most new power plants. “The proposed standard is set at the level of a natural gas-fired power plant,” Danish said. “As a result, it would be impossible for a new coal-fired power plant to meet unless it installed carbon capture and sequestration, which is not a generally available technology.” 

Yet to be seen, he said, is whether the EPA will issue a final version of its rule on new power plants this spring, or whether it will withdraw and reconsider that proposal.

“The major undertaking will be development of regulations affecting existing power plants,” he said. “Some environmental organizations, such as NRDC and the World Resources Institute, have suggested that EPA could structure regulations that would achieve very substantial reductions from the power sector. However, the scope of the agency's regulatory authority under the relevant provisions of the Clean Air Act is unclear and untested in the courts.” 

Many of EPA’s decisions end up having their fate determined by the U.S. Court of Appeals for the District of Columbia Circuit.

The Clean Air Act of 1970 includes a provision that requires legal challenges to EPA standards of national scope to go only to the Court of Appeals for the D.C. Circuit.

There are now four vacancies on that court, out of 11 authorized judgeships. The court has four judges appointed by presidents George H.W. Bush and George W. Bush, and three appointed by President Bill Clinton.

Due to Republican delay, Obama has not been able to appoint any judge to the D.C. Circuit Court. He has two nominations to that court pending before the Senate, those of Caitlin Halligan, who has already been approved but the Senate Judiciary Committee, and Sri Srinivasan, who hasn’t yet gotten the committee’s approval.

“Every major EPA Clean Air Act regulation attracts a D.C. Circuit legal challenge -- often from both environmental groups and industry,” Danish said. “In addition, the scope of EPA's authority under the Clean Air Act to regulate greenhouse gases is a still-evolving area. For this reason, Obama's nominees for D.C. Circuit judgeships could be as important for the fate of his climate policy as his nominee for EPA Administrator.”

Senate Majority Leader Harry Reid announced Monday that the Senate would vote on Halligan’s nomination this week. He will move for a cloture vote on Wednesday to end debate on her nomination. 

“President Obama is the only president in the 65-year history of this court to not have a single judge confirmed to that court during his first term,” Reid complained on the Senate floor Monday. “The court desperately needs more judges.”

Taking the floor after Reid, Senate Judiciary Committee Chairman Patrick Leahy, D-Vt., said that in some areas of the law, the D.C. Circuit court “is more important than the Supreme Court because on so many of the issues that go there, they will have the final word. The Supreme Court will never hear all the requests for appeals from the D.C. Circuit.”

He added, “It’s extraordinarily important that we have a balanced court there.”