Link to Inhofe EPW Press Blog
What is harm? For that matter, what is “irreparable harm”? In an economic sense, one would think unemployment, production cutbacks, or even bankruptcy would qualify. Not according to EPA.
The issue is more than academic. It is now before the DC Circuit. Recently, industry and the state of Texas moved to block implementation of EPA’s rules while the court determines their legality. This “stay motion” can succeed only if petitioners demonstrate, among other things, “irreparable harm” from EPA’s rules.
In its reply brief, EPA offered a curious definition of what that means.
“Economic loss,” EPA pronounced, “does not constitute irreparable harm” (emphasis in the original). As proof, EPA cites
Wisconsin Gas Co. v. FERC. In that case, the court ruled: “Mere injuries, however substantial, in terms of money, time, and energy necessarily expended in the absence of a stay are not enough.” So what is irreparable harm? The court explained: “[r]ecoverable monetary loss may constitute irreparable harm only where the loss threatens the very existence of the movant’s business” (emphasis added). In other words, don’t complain to us unless your business faces extinction. No harm, no foul.
The agency further argues that its greenhouse gas regulations will actually increase certainty. The proof lies, according to EPA, in its tailoring rule, which unilaterally redefines the emissions thresholds for major sources under the CAA. The rule helps “by clarifying for numerous entities potentially covered for the first time by the PSD and Title V stationary source permit provisions when and under what circumstances they will face regulation.” The agency adds, apparently without irony, “at least until 2016.” In other words, your investment is safe, at least for the next five years. There’s certainty for you.
This, of course, is not to mention the uncertain outcome of the pending litigation—filed by industry, states, and environmental groups—and what it might hold for potentially regulated businesses. Will the DC Circuit vacate the tailoring rule? On what grounds? Will it be remanded back to the agency for further tweaking? Will the endangerment finding get tossed altogether or thrown back on procedural grounds? Further, what constitutes Best Available Control Technology for new and modified sources of GHG emissions?
Only time will tell. In the meantime, EPA’s greenhouse gas regime is threatening jobs and compounding business uncertainty, neither of which bodes well for the nation’s economic recovery.
