In another round in the multi-front effort by a number of states and environmental organizations to use the legal system to compel EPA to regulate greenhouse gases, New York Attorney General Andrew Cuomo, New York, eleven other states, the District of Columbia, and the City of New York filed an appeal on August 25, 2008 of the United States Environmental Protection Agency’s (“EPA”) final rule entitled “Standards of Performance for Petroleum Refineries; Final Rule.”  The rule codifies changes to the New Source Performance Standards (“NSPS”) for oil refineries.  The NSPS program, under the Clean Air Act Section 111(b), requires new or renovated sources of air pollution to install state-of-the-art emissions control technologies for certain air pollutants.  The appeal, filed in the U.S. Court of Appeals for the District of Columbia Circuit, seeks to force the EPA to include in NSPS for oil refineries controls specifically targeting greenhouse gasses such as carbon dioxide. 

The other states joining in the suit are California, Connecticut, Delaware, Massachusetts, Maine, New Hampshire, New Mexico, Oregon, Rhode Island, Vermont, and Washington.  The suit alleges that about 15% of U.S. industrial emissions of carbon dioxide, a greenhouse gas, come from crude oil refineries, which burn oil to produce gasoline, jet fuel, and other products.  Petitioners claim that greenhouse gases create a danger to the public health and welfare of their citizens. 

The argument that EPA must include NSPS for carbon dioxide and other greenhouse gases in a NSPS rulemaking stems from last year’s ruling by the U.S. Supreme Court in Massachusetts v. EPA that the EPA has the authority to regulate greenhouse gases under the Clean Air Act.  In the challenged final rule, EPA asserts its discretion over whether and when to regulate specific pollutants, including greenhouse gases, under Section 111(b).  The agency insists it is under no obligation to regulate greenhouse gases in this particular rulemaking and expresses a preference for a more comprehensive, deliberative approach to greenhouse gas regulation.  It has begun the process of designing such an approach in its greenhouse gas Advanced Notice of Proposed Rulemaking, with comments due on November 28, 2008.

The August 25 appeal is just one of a series of attacks against EPA by New York and other states to force the agency to use its authority under the Clean Air Act to tackle the problem of global warming.  It comes on the heels of a decision by the U.S. Circuit Court of Appeals for the D.C. Circuit to throw out an EPA rule preventing states and local authorities from requiring air pollution monitoring at some industrial facilities beyond what is mandated under Title V of the Clean Air Act. 

The challenged final rule was published at 73 Fed. Reg. 35,838 (June 24, 2008), codified at 40 C.F.R. part 60, subpart J.  It will likely be several months before the Court of Appeals hears the states’ appeal.