Comcast Decision May Thwart EPA CO2 Finding

On April 6, 2010, a three judge panel of the Federal Court of Appeals for the District of Columbia Circuit held unanimously in Comcast Corporation v. FCC that the Federal Communications Commission (FCC) had overstepped its statutory authority in attempting to regulate certain aspects of cable internet service, in a decision written by Judge David S. Tatel. In an earlier article, I wrote about the decision in terms of its impact on the FCC, which may be substantial. Anyone interested in that is invited to read that article. Here, I would like to address the broader implications of the decision on other administrative agencies, particularly the Environmental Protection Agency (EPA).

The decision provides critical guidance on how the D.C. Circuit may eventually rule on current efforts of the EPA to vastly expand its statutory authority over air quality standards. The D.C. Circuit has exclusive jurisdiction to entertain appeals from most FCC decisions as well as the decisions of most federal administrative agencies, including the EPA. The process bypasses intermediate proceedings at the Federal District Court level, and decisions by the D.C. Circuit can be appealed only to the Supreme Court. Nearly always, acceptance of such appeals is discretionary with the Supreme Court through the certiorari process. Very few petitions for grant of a writ of certiorari are granted.

The matters which the EPA are currently trying to resolve are potatoes currently too hot for the Congress to handle. Accordingly, the EPA apparently plans to rely on the Clean Water Act and ocean acidification data -- as to the applicability of which there are serious questions. Also, according to Newsweek:

Unless Congress acts by next January, [EPA Administrator] Jackson says, the EPA will use its authority under America's Clean Air Act to phase in new restrictions on carbon dioxide, the greenhouse gas that contributes to global climate change. The U.S. emits nearly a quarter of the world's carbon dioxide; the EPA has identified it and five other greenhouse gases as a threat to public health. "The difference between this administration and the last is that we don't believe we have an option to do nothing," Jackson told NEWSWEEK. ....

The Nixon-era Clean Air Act was never intended to regulate a pollutant as pervasive as carbon. Both environmentalists and industry heads also acknowledge that Congress would be able to address the problem better. "The only thing everyone agrees on is that a regulatory approach would be more expensive and less effective than legislation," says Paul Bledsoe, spokesman for the National Commission on Energy Policy, an arm of Washington's Bipartisan Policy Center. But until Congress takes up the question, Obama holds the only key to sweeping carbon cuts.

If I read the Comcast case correctly, the rationale relied upon by the D.C. Circuit may prove very inconvenient for the EPA and may put a damper on its attempt to circumvent Congress. I strongly suspect that as I write this article, lawyers at the EPA are reading Judge Tatel's Comcast decision and trying to decide how to evade avoid its implications.