SLF Files Petition for Review in U.S. Court of Appeals for District of Columbia: EPA Oversteps Again
June 12, 2015: Southeastern Legal Foundation filed a Petition for Review with the U.S. Court of Appeals for the District of Columbia requesting review of final action taken by the U.S. Environmental Protection Agency published into the Federal Register today. The published Rule is a continuation of the greenhouse gas emissions regulatory scheme struck down by the U.S. Supreme Court as “defective” in 2014.
The EPA’s Rule is titled, “State Implementation Plans’ Response to Petition for Rulemaking; Restatement Update of EPA’s SSM Policy Applicable to SIP’s; . . . and SIP Calls to Amend Provisions Applying to Excess Emissions During Periods of Startup, Shutdown, and Malfunction,” Final Rule.
SLF filed formal Public Comments on May 10, 2013 and November 6, 2014 calling on EPA to withdraw the Proposed SIP Calls because of “substantive and procedural flaws due in large measure to the agency’s “sue and settle” rulemaking that was undertaken in this case. EPA did not follow appropriate rulemaking procedures rendering the Proposed SIP Calls arbitrary and capricious, an abuse of discretion, beyond the agency’s statutory and Constitutional limits, and otherwise contrary to law.”
Further, SLF alleged that, despite decades-long practical regulatory framework in the vast majority of states for addressing startup, shutdown, and malfunction (SSM) events for stationary sources that recognized that emissions levels would exceed normal emissions levels during these occasional events, something else far more sinister has been afoot.
As SLF points out in its November 6, 2014 comments, “In June 2011, Sierra Club submitted a Petition for Rulemaking asking EPA to essentially wipe out these SSM provisions and longstanding regulatory practice. Then, hardly a month later, EPA committed itself in a settlement agreement in unrelated litigation with Sierra Club and WildEarth Guardians to take action on the Petition.”
“This pattern, now all-too-well established during the Obama administration, is called ‘sue and settle’ – essentially a tacit agreement between radical environmental groups and their allies in the EPA to tackle controversial new regulations as a means to defer or settle litigation,” said Shannon L. Goessling, SLF executive director and chief legal counsel. “This represents the very worst kind of executive fiat – coercive and harsh regulations enacted in defiance of decades of well-established regulatory practice in order to achieve the ends of radical environmentalists – all in violation of clearly established executive limits and outside of Congressional authority under existing statutes.”
“We intend to challenge this unconstitutional ‘inside baseball’ and expose ‘sue-and-settle’ for what it is – complicit behavior intended to achieve unaccountable policy aims that are outside due process and regulatory deliberation that are designed to protect all Americans from arbitrary and capricious unilateral executive overreach,” Goessling added.
Click Here for SLF Filing
Click Here for New EPA SSM Rule
Click Here for SLF Public Comments to EPA in 2013-2014