How Many Suits Is Too Many? Consolidation and Coordination Possibilities in EPA Climate Litigation

Gregory E. Wannier
Deputy Director

The landscape of challenges to EPA’s climate change rulemakings is extremely complex.  To manage the multitude of lawsuits, the U.S. Court of Appeals for the District of Columbia Circuit may consider consolidation and coordination procedures to combine more than 80 cases into a more manageable number.  Industry-affiliated groups and individuals generally favor some form of case combination and environmentalist-affiliated groups intervening on the EPA’s side (“state intervenors”) and the EPA prefer separate hearings for reasons explained below.[1]

The first, simpler, fix is to consolidate claims, essentially making them one large case.  Consolidation is allowed “[i]n order to achieve the most efficient use of the Court’s resources,” for “all petitions for review of agency orders entered in the same administrative proceeding.”[2] This has already occurred among the challenges to each individual EPA rule.

Petitioners have also moved to “coordinate” the four separate cases.  Case coordination involves hearing multiple cases before the same panel, with a goal of yielding complementary decisions in cases where challenges cover related activities.  In their motion for consolidation, petitioners argue that case coordination under a single panel is standard procedure, citing four cases that make this point.[3]

Petitioners’ main argument is that the cases are substantively interrelated so as to “amount[] to a single policy approach,” and should be decided by the same panel to avoid “duplicative briefing” and “conflicting decisions.”  The duplication would come from the DC Circuit’s consideration of “core questions of EPA’s legal authority to regulate and record support for that authority.”[4] To support their contention that the rules are interrelated, petitioners quote EPA itself: “In recent months, EPA has taken four related actions that, taken together…will subject GHGs emitted from stationary sources to PSD requirements, and limit[] the applicability of PSD requirements to GHG sources on a phased-in basis.”[5]

Petitioners further argue that combining the cases into one case will prevent EPA from attempting to dismiss challenges to its rules based on jurisdictional principles (particularly standing, in the injury-in-fact and causation inquiries).  They contend that separate review could result in an attempt to call for “a more appropriate forum” in every case, and thereby deny all forums for review.[6]

EPA and state intervenors disagree.  In EPA’s response, it concedes that the Timing and Tailoring Rules are interrelated, and indeed cross-claims to consolidate those two cases.[7] However, it strongly opposes coordinating these cases with those reviewing the Endangerment Finding and Tailpipe Rule.  EPA argues that combining these cases will confuse the courts with largely irrelevant piles of documents and a confusing proliferation of lawsuits, in violation of CAA rules.[8] To support this, it and state intervenors point out that the EPA regulations deal with entirely different administrative records and legal questions, and involve “an entirely separate set of issues.”[9]

Furthermore, EPA argues that separating the cases will not present justiciability issues with respect to parties, or to individual arguments.  It points out that DC Circuit rules allow petitioners to use evidence outside the administrative record to establish standing.[10]

Petitioners’ showing that EPA views the regulations as four parts of an interrelated block of regulation gives strong support to their claim.  However, beyond that their arguments are incomplete.  The fundamental linking question said to justify coordination (whether EPA has “authority to regulate”) is vague, and the guidelines for the four regulations are in three entirely different sections of the CAA.[11] Also, standing, as a constitutional justiciability issue, is not beholden to administrative records and looks to the final results of agency action.  Thus, petitioners’ standing case should not be weakened if their challenges are separated.

Neither EPA nor state intervenors respond to petitioners’ case support.  However, an analysis of the four cases reveals little.  In the first cited case, Davis v. DOJ, two petitions were heard and decided by the same panel, on the same day – but they both involved the very narrow question of retroactive application of attorneys’ fees under 2007 amendments to the Freedom of Information Act.[12] Similarly, in Noramco of Del. v. DEA two petitions were coordinated, but both involved DEA approval of specialized importers under §823(a) of the Controlled Substances Act.[13] For the In re TMI Litigation, the quote relied on in petitioners’ text[14] refers to consolidation (as opposed to coordination) of the cases at issue, and the issue in common (application of a particular evidentiary rule) was similarly particular.[15]

The most similar situation to the claims above comes from the New York v. EPA cases, where the same parties challenged two distinct rules interpreting CAA’s New Source Review (NSR) program.[16] The court here denied consolidation but granted coordination, similar to what petitioners ask for here.  However, even here both cases involved NSR guidelines, thereby looking substantially more similar than EPA’s regulations here.

The battle lines on this issue appear to be clear-cut: petitioners see some advantage from consolidation, EPA some disadvantage.  It is possible that petitioners hope to sully EPA’s endangerment Finding defense by linking it directly to other parts of EPA’s regulatory regime that are less legally supportable (and more politically controversial).  However, coordination here will be difficult for petitioners to justify given prior practice in this area.

[1] See Motion for Coordination of Related Cases, D.C. Cir. Doc.: 1262772 (Aug. 26, 2010); Respondent’s Opposition to Motion for Coordination of Cases and Cross-Motion for Consolidation of Consolidated Case No. 10-1131 with Consolidated Case No. 10-1073, D.C. Cir. Doc.: 1265175 (Sep. 10, 2010); Response to Petitioners’ Motion to Coordinate Cases by Intervener States, D.C. Cir. Doc.:1265212 (Sep. 10, 2010) .

[2] United States Court of Appeals for the District of Columbia Circuit, Handbook of Practice and Internal Procedures 23 (Amended May 10, 2010).

[3] Motion for Coordination of Related Cases, supra note 1, at 14; cases discussed in detail below.

[4] Id. at 2, 11, 16.

[5] Action to Ensure Authority to Issue Permits under the Prevention of Significant Deterioration Program to Sources of Greenhouse Gas Emissions: Finding of Substantial Inadequacy and SIP Call, Proposed Rule (Aug. 10, 2010).

[6] Motion for Coordination of Related Cases, supra note 1, at 16-19.

[7] Respondent’s Opposition to Motion for Coordination of Cases, supra note 1, at 17-19.

[8] “[J]udicial review for any agency action is to be based ‘exclusively’ on the administrative record for that particular action.” Id at 11; see also 42 U.S.C. § 7607(d)(7)(A).

[9] For two different arguments laying out the different questions, see Respondent’s Opposition to Motion for Coordination of Cases, supra note 1, at 12-14, 16; and Response to Petitioners’ Motion to Coordinate Cases by Intervener States, supra note 1, at 2-5.

[10] D.C. Cir. R. 15(c)(2), 28(a)(7).

[11] The endangerment finding would turn largely on the adequacy of the scientific basis for climate change and rules established in Title I Part A; the tailpipe rule deals with Title II Federal Emission Standards for Moving Sources, and the Timing and Tailoring Rules cover Prevention of Significant Deterioration (PSD) concerns in Title I, Part B.

[12] Davis v. DOJ, 610 F.3d 750 (D.C. Cir. 2010); Judicial Watch v. BLM, 610 F.3d 747 (D.C. Cir. 2010).

[13] Noramco of Del. v. DEA, 375 F.3d 1148, 1153, 1155-57 (D.C. Cir. 2004).

[14] The “purpose of similar device under Federal Rule of Civil Procedure 42(a) is to “avoid duplication of effort” and “prevent conflicting outcomes” in interconnected cases.” Motion for Coordination of Related Cases, supra note 1, at 14).

[15] This was a nuclear radiation exposure case, where two claims were identical (appealing dismissal of evidence), and the third was similar (appealing manipulation of evidence fines).  In re TMI Litig., 193 F.3d 613, 622-629, 724 (3d Cir. 1999).

[16] One case challenged procedures for calculating emissions, special treatment of certain plants, and recordkeeping under NSR.  New York v. EPA, 413 F.3d 3 (D.C. Cir. 2005).  The other challenged the exemption of certain-sized projects from NSR Review altogether.  New York v. EPA, 443 F.3d 880 (D.C. Cir. 2006).

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