Coalition for Responsible Regulation, et al. v. EPA (Timing & Tailoring Rules)

Case Updates

The D.C. Circuit ruled that the petitioners lacked standing to bring the lawsuits.

NCLC, along with other co-petitioners, filed an opening brief in consolidated lawsuits challenging a pair of rules (known as the “Timing Rule” and “Tailoring Rule”) that misapply the Clean Air Act to regulate greenhouse gases from stationary sources.

In 2008, the prior Administrator of the EPA issued an interpretive memorandum (now known as the Johnson Memorandum), making clear that mere reporting requirements for greenhouse gases did not trigger the Clean Air Act’s rigorous regulatory regime imposing onerous requirements on all stationary sources of greenhouse gases. In 2009, EPA reconsidered the memorandum’s approach to Clean Air Act regulation, issuing its revised memorandum in March 2010 (the “Timing Rule,” also known as the “Triggering Rule”). NCLC argues that the EPA lacks authority to regulate greenhouse gases from stationary sources via the Clean Air Act.

After issuing the “Timing Rule,” in June 2010, EPA finalized a rule temporarily exempting smaller stationary sources of greenhouse gases from the Clean Air Act's permitting requirements which would take effect January 2011 (the “Tailoring Rule”). According to the EPA, regulating greenhouse gases under the plain terms of the Act would lead to “absurd results” - specifically, an additional 6 million small facilities – including hospitals, small farms, restaurants, hotels and office buildings – would be subjected to the EPA's onerous and costly permitting process. The EPA admitted that such an unprecedented regulatory expansion would 'paralyze' and 'overwhelm' permitting authorities, leaving businesses waiting months or even years to get the permits they need to keep operating. NCLC argued that given these admittedly “absurd results,” EPA should have concluded that the Clean Air Act was not designed to regulate greenhouse gases. Instead, EPA took a red pen to the statute to unilaterally “tailor” it to regulate GHGs.

NCLC's lawsuits challenging these rules are part of the Litigation Center's multifaceted strategy to make clear that the Clean Air Act is not the appropriate vehicle for greenhouse gas regulation.