EPA climate regulation, the budget, and Obama's nuanced-but-wrong view on climate lawsuits

One under-reported aspect of the Obama budget compromise is that EPA's regulation of climate change gets to move forward, although grants and other programs to directly fight climate change were killed. This seems to me to be an important victory - EPA has another year to get more detailed regulations developed, polluters have to spend a year in compliance and begin their adaptation to regulation. Most importantly, the climate rejectionists only have one more shot to kill EPA regulation in the 2012 budget before the November 2012 elections. New regs should be finished by the time the 2013 budget rolls around, and if we're lucky, the Republican majority in the House will be much smaller (although the same is likely true for the Democratic majority in the Senate, where 2 Dems are up for re-election for every Repub in that cycle). Budgets, not direct overturning of EPA authority, are the things we have to worry about.

Of course, the EPA climate regulations aren't exactly earthshaking, but they are progress. I also expect lawsuits by the enviro community sometime after the regulations are in place - not to suspend them, but to keep them in place while enviros litigate for tougher ones. Comprehensive climate legislation would of course be better, but this is the hand we've got until at least 2013, and quite possibly two or four years later given the difficulty overcoming the filibuster in the Senate.

I think this all plays a role in Obama's nuanced-but-wrong attempts to strike down climate change lawsuits in the courts. It went to oral argument last week, and things don't look good. Lawprof Jonathan Zasloff excoriated Obama for taking the polluters' side last fall, while I took a nuanced-but-critical view in the comments to Jonathan's post. Obama is arguing the climate-as-a-public nuisance is displaced by the Clean Air Act, as long as the EPA is acting to enforce the law:

in the 15 months since the court of appeals issued its decision, EPA has taken several substantial actions pursuant to its CAA authority to address greenhouse-gas emissions. EPA finalized the proposed rule that the court of appeals discussed—the “endangerment finding” (i.e., that greenhouse-gas emissions are reasonably anticipated to endanger public health and welfare). It also adopted standards governing emissions of greenhouse gases from certain motor vehicles. As a result of those regulations, which took effect on January 2, 2011, carbon dioxide is now a “pollutant subject to regulation under [the CAA].” 42 U.S.C. 7475(a)(4).

On December 23, 2010, EPA announced a proposed settlement agreement, under which it would commit to complete, by May 26, 2012, a rulemaking relating to NSPS for greenhouse gases emitted by fossil-fuel-fired electric-utility steamgenerating units (i.e., the category of stationary sources at issue in this case).

Thus, EPA’s actions have triggered a regulatory cascade that will result in the application of PSD requirements to new and modified stationary sources that emit greenhouse gases.

(p. 10)

In other words, if the Republicans take away enforcement, the nuisance case has a strong reason to come back. Obama figures this will reduce the level of Republican incentive to gut the EPA on climate change.

I'm not saying I agree with this, but just that it's a workable strategy. It's a strategy aimed at promoting EPA regulation. If all you wanted was new climate legislation in Congress then you wouldn't do this, you'd instead keep the nuisance suits viable absent any legislation and then offer to kill them in the new legislation as a concession to the rejectionists.

I think it's bad law, in that it basically denies the role of courts in adjudicating public nuisances like they've done for generations, but there's reasoning behind it.