Led by New York, a group of twelve states and two cities filed suit yesterday against the EPA in the federal Circuit Court in Washington, DC.

The suit revolves around the New Source Performance Standards (NSPS), a set of federal regulations that create technology-based emissions limits for a variety of large industries.  EPA issued an updated NSPS for petroleum refineries in June 2008, but the rules do not require refineries to install equipment aimed at reducing greenhouse gas (GHG) emissions.  Instead, the new NSPS focuses on “traditional” air pollutants:  nitrogen oxides, sulfur dioxide, and particulate matter.  The suit argues that omitting GHG emissions from the NSPS violated the Clean Air Act.

The Clean Air Act requires that oil refineries, when built or modified, install equipment to reduce emissions of pollutants that endanger human health and welfare.  In April 2007, the Supreme Court in Massachusetts v. EPA ordered the agency to make a determination whether GHG emissions, in the context of emissions from new automobiles, actually endanger human health.  In July 2008, after a second round of lawsuits aimed at forcing the agency to act, EPA responded indirectly by issuing an Advanced Notice of Proposed Rulemaking, a nearly 500 page analysis of the potential implications of having EPA regulate GHG emissions.  This document makes it clear that EPA believes that any action in this area should come from Congress, and not by a court mandate to the agency.  As a result, EPA has continually refused to take affirmative steps to regulate GHG emissions.

The NSPS is but one more area of conflict between EPA and parties advocating for stronger federal regulation of GHG emissions.  Given the timing of this suit, it is highly unlikely that this matter will be resolved before a new President is sworn in next January.  Despite that fact, the Plaintiffs are at least continuing to advance the climate change debate in the public arena, particularly at a time when the country’s focus is on the upcoming national elections.  Whether this strategy proves successful in obtaining regulations to limit GHG emissions remains to be seen.

For further information about this topic, please contact Akin Gump.