After hosting claims that the EPA acted "lawless[ly]" by regulating greenhouse gas emissions, Fox News' flagship "straight news" program Special Report has ignored an important court ruling that undermines Fox's narrative.
After Shedding Doubt On EPA's Legal Authority, Special Report Ignores Ruling In Favor Of EPA
Special Report Has Not Covered DC Circuit Court Ruling. Special Report has not covered the ruling by the DC Circuit Court of Appeals, a panel of judges that includes a conservative Reagan appointee, in favor of EPA's authority to regulate greenhouse gases under the Clean Air Act. [Fox News, Special Report, 6/26/12 and 6/27/12, via Nexis]
Krauthammer Suggested On Special Report That EPA Rule Is "Outright Lawlessness." After the Obama administration announced changes to immigration enforcement in June last year, regular Special Report contributor Charles Krauthammer said that it was "outright lawlessness" and that "It's exactly as Obama is doing with the EPA. Cap and Trade is rejected so it will regulate the carbon emissions again through executive action." [Fox News, Special Report, 6/23/11, via Nexis]
Fox Correspondent Suggested CO2 May Not Be A Pollutant Under The Clean Air Act. On February 9, 2011, Fox News correspondent Jim Angle delivered a he-said/she-said report on whether carbon dioxide can be regulated under the Clean Air Act:
JIM ANGLE, FOX NEWS CHIEF WASHINGTON CORRESPONDENT: Republicans want to make sure the EPA doesn't use the Clean Air Act to do by regulation what Congress refused to do in legislation, passed a cap and trade law aimed at reducing carbon emissions by taxing them.
ANGLE: Democrats accused Republicans of trying to weaken the Clean Air Act and endanger health, but Republicans struck back, noting none of the six pollutants covered by the Clean Air Act would be affected. They include lead, sulfur dioxide, carbon monoxide, and others, but not carbon dioxide, the greenhouse gas the EPA wants to regulate.
UNIDENTIFIED MALE: The Clean Air Act does not give you that authority.
LISA JACKSON, EPA ADMINISTRATOR: The Supreme Court says it does.
WAXMAN: The Supreme Court, by 5-4, said the EPA must regulate if they have endangerment finding.
ANGLE: But Republican Joe Barton told Administrator Jackson that is not the case.
REP. JOE BARTON (R), TEXAS: CO2 is not mentioned in the Clean Air Act. It's a 5-4 that it might be. It is your administration's position that it should be. But that doesn't mean that it has to be. [Fox News, Special Report, 2/9/11, via Nexis]
Fox Correspondent: EPA Is "Circumventing Congress." On the January 6 edition of Special Report, Fox News correspondent Claudia Cowen reported: "Circumventing Congress, the Environmental Protection Agency is ordering heavy trucks to reduce greenhouse gas emissions." [Fox News, Special Report, 1/6/12, via Nexis]
Special Report Previously Highlighted Legal Challenges To EPA. The September 29, 2011, edition of Special Report highlighted an Inspector General's report requested by Republicans which found that the EPA missed some obscure technical steps in its greenhouse gas endangerment finding, and said the report would "provid[e] ammunition to Republicans and industry lawyers battling the Obama administration over the decision to use the Clean Air Act to fight global warming." [Fox News, Special Report, 9/29/11, via Nexis]
Ruling Refutes Fox Narrative That EPA Acted Lawlessly
Unanimous Court Ruling: EPA Was "Unambiguously Correct," "Greenhouse Gases Are Indisputably An 'Air Pollutant.'" From the text of the recent ruling by the DC Circuit Court of Appeals:
Petitioners, various states and industry groups, challenge all these rules, arguing that they are based on improper constructions of the CAA [Clean Air Act] and are otherwise arbitrary and capricious. But for the reasons set forth below, we conclude: 1) the Endangerment Finding and Tailpipe Rule are neither arbitrary nor capricious; 2) EPA's interpretation of the governing CAA provisions is unambiguously correct; and 3) no petitioner has standing to challenge the Timing and Tailoring Rules. We thus dismiss for lack of jurisdiction all petitions for review of the Timing and Tailoring Rules, and deny the remainder of the petitions.
We begin our analysis, as we must, with the statute's plain language. CAA Section 169(1) requires PSD permits for stationary sources emitting major amounts of "any air pollutant." (emphasis added). On its face, "the word 'any' has an expansive meaning, that is, 'one or some indiscriminately of whatever kind.'" Greenhouse gases are indisputably an "air pollutant." See Massachusetts v. EPA. Congress's use of the broad, indiscriminate modifier "any" thus strongly suggests that the phrase "any air pollutant" encompasses greenhouse gases. [U.S. Court of Appeals, Coalition for Responsible Regulation v. EPA, 6/26/12, emphasis added]
The Clean Air Act Identified Six Known Pollutants, But Also Required That EPA Regulate Pollutants That Pose A Danger To Public Health And Welfare. Science magazine reported:
The Clean Air Act named six known pollutants, including lead and soot. But it also set up a process called the "endangerment finding" that EPA would use to decide whether additional pollutants should be regulated under the act or adjust its standards for allowable pollution.
"Congress said to the EPA: We want you to be watching the science. You're supposed to be on guard. When the science shows there's a danger, then you need to act. Don't come to us for instructions," says David Doniger, an attorney with the Natural Resources Defense Council in Washington, D.C.
There's evidence that during the drafting of the act and its subsequent amendments that climate was one of the dangers Congress was thinking about. In 1970, as mentioned here, Senator Caleb Boggs (R-DE) said during debate on the law that "Air pollution alters climate and may produce global changes in temperature." As laid out here, in 1977 a report by the House that accompanied an update to the law mentioned "possible weather and climate modifications" among the risks to particulate matter it was seeking to regulate. [Science magazine, 2/7/11]
Court Ruling: Clean Air Act "Mandates That EPA Promulgate New Emission Standards" If A Pollutant "'May Reasonably Be Anticipated To Endanger Public Health Or Welfare.'" From the text of the recent ruling by the DC Circuit Court of Appeals:
Congress did not restrict EPA to remedial regulation when it enacted CAA § 202(a). That section mandates that EPA promulgate new emission standards if it determines that the air pollution at issue "may reasonably be anticipated to endanger public health or welfare." This language requires a precautionary, forward-looking scientific judgment about the risks of a particular air pollutant, consistent with the CAA's "precautionary and preventive orientation." Requiring that EPA find "certain" endangerment of public health or welfare before regulating greenhouse gases would effectively prevent EPA from doing the job Congress gave it in § 202(a)--utilizing emission standards to prevent reasonably anticipated endangerment from maturing into concrete harm. [U.S. Court of Appeals, Coalition for Responsible Regulation v. EPA, 6/26/12]
Expert: Ruling Entirely In Favor Of The EPA Was Important And Unexpected. The Associated Press quoted Michael Gerrard of the Center for Climate Change Law at Columbia University who said that the "complete slam dunk" for EPA was unexpected:
A three-judge panel of the U.S. Court of Appeals in Washington said that the Environmental Protection Agency was "unambiguously correct" in using existing federal law to address global warming, denying two of the challenges to four separate regulations and dismissing the others.
Michael Gerrard, director of the Center for Climate Change Law at Columbia University, said no one expected the "complete slam dunk" issued by the court Tuesday, and said the decision was exceeded in importance only by the Supreme Court ruling five years ago. [Associated Press, 6/26/12, via Washington Post]