Center for Biological Diversity v. EPA

The D.C. Circuit Court of Appeals denied a petition by industry groups for rehearing of its 2013 decision rejecting the United States Environmental Protection Agency’s (EPA’s) deferral of regulation of carbon dioxide from biogenic sources. The industry groups included the American Forest & Paper Association, the Utility Air Regulatory Group, and the Renewable Fuels Association. The D.C. Circuit denied their request without comment. The industry groups had argued that the decision needed to be reconsidered in light of the Supreme Court’s 2014 decision in <a href="https://climatecasechart.com/files/case-documents/2014/20140623_docket-12–1146_opinion.pdf">Utility Air Regulatory Group v. EPA</a>.

Industry groups filed a petition for rehearing. This litigation had been on hold while other proceedings challenging EPA’s regulatory regime for greenhouse gas emissions made their way to the Supreme Court, culminating in the Supreme Court’s decision in <a href="https://climatecasechart.com/files/case-documents/2014/20140623_docket-12–1146_opinion.pdf">Utility Air Regulatory Group v. EPA</a> in June 2014 and eventually in the D.C. Circuit’s </a href="https://climatecasechart.com/files/case-documents/2015/20150410_docket-09-1322-10-1073-10-1092-10-1167_order.pdf">amended judgment</a> in April 2015. The industry groups argued in their petition for rehearing that the D.C. Circuit needed to consider UARG v. EPA’s impact on the rule deferring regulation of biogenic carbon dioxide, given that the “Deferral Rule” amended the “Tailoring Rule,” which was partially invalidated by UARG v. EPA. The industry groups also contended that the D.C. Circuit should have considered remand without vacatur as an appropriate remedy and that the D.C. Circuit had erred in finding that the record did not support the Deferral Rule.

The D.C. Circuit Court of Appeals granted the intervenors' motion extend the deadline to petition for rehearing en banc. Petitioners had opposed granting the motion to extend the deadline. The court required the respondent-intervenors to file any petition no later than 30 days after the Supreme Court’s decision whether to grant the pending petitions for a writ of certiorari seeking review of the D.C. Circuit’s decision in <a href="https://climatecasechart.com/files/case-documents/2012/20120626_docket-09-1322-10-1073-10-1092-10-1167_opinion-1.pdf">Coalition for Responsible Regulation v. EPA</a>, which upheld EPA’s regulation of greenhouse gas emissions under the Clean Air Act.

The D.C. Circuit vacated EPA’s rule that deferred regulation of “biogenic” carbon dioxide from non-fossil fuel carbon dioxide sources such as ethanol for three years. The court ruled that EPA could not rely on the de minimis, one-step-at-a-time, administrative necessity, or absurd results doctrines of administrative law to justify this “Deferral Rule.”  Judge Kavanaugh wrote a concurring opinion that asserted that in his view none of the above doctrines could apply because EPA had no statutory authority to distinguish between types of carbon dioxide.  Judge Henderson dissented, voicing her view that EPA could defer regulation until it had taken the time it needed to study and resolve the issue or, alternatively, that the matter was not ripe for adjudication.