Environmental Groups go to Court to Counter Virginia Attorney General’s Effort to Block Action on Cl

Virginia Attorney General Ken Cuccinelli’s challenge to the Environmental Protection Agency’s finding that greenhouse gases endanger human health and welfare is an unwarranted stall tactic, and a dangerous distraction from grappling with the damaging impacts of climate change already in evidence in coastal Virginia, said two environmental groups in a filing with the U.S. Court of Appeals for the D.C. Circuit.

The Southern Environmental Law Center, on behalf of the Norfolk-based Wetlands Watch, late yesterday filed a motion to intervene on the side of the EPA in the attorney general’s lawsuit against the agency, filed last month. The overwhelming body of scientific evidence going back several decades supporting EPA’s determination that carbon dioxide and other greenhouse gas emissions endanger human health, coupled with the long-standing practice of courts deferring to agencies on matters within their areas of expertise, render the legal merits of Cuccinelli’s challenge highly questionable, said SELC  senior attorney Morgan Butler.

“It’s disturbing that our state attorney general chooses to challenge the mountain of evidence, considering the number of Virginia businesses and residents experiencing firsthand the consequences from rising sea level and other impacts of a changing global climate,” Butler said.

“Ask anyone trying to get insurance on their home or business in tidewater if something is changing.  Ask long-time residents how high the floodwaters rose in their grandparents’ time, and where the last floods reached,” said Skip Stiles, executive director with Wetlands Watch. Stiles said that over the last century, Virginia has had the highest rate of sea-level rise of any Atlantic coast state, according to the National Oceanic and Atmospheric Administration. Virginia stands to lose 50-80% of its remaining tidal wetlands, much of its oceanfront, and hundreds of square miles of low-lying land from predicted rates of sea level rise, he said.

Clay Lory, a long-time owner and resident of tidal waterfront property on a peninsula surrounded by the waters of the Lafayette River in Norfolk, is a declarant in the motion. “The scientific calculations of the rise of water levels this century does not bode well for my property, Norfolk, or for eastern Virginia. I am very concerned about the actions of Attorney General Cuccinelli in his attempt to stall and prevent the EPA from taking immediate action to reduce the levels of manmade greenhouse gases.” 

Following a 2007 U.S. Supreme Court ruling that greenhouse gases meet the Clean Air Act definition of air pollutants, the EPA began the process of determining whether they endanger public health and welfare, as required by the law. The agency reviewed a voluminous amount of scientific data and considered some 380,000 public comments on the issue, and in December announced a final determination that greenhouse gases contribute to a changing climate, with consequences such as severe flooding from sea level rise, more intense storms, and increased ground-level ozone that threaten public health.

At his press conference last month, Cuccinelli made much of being among the first states to file a legal challenge against the federal government on this issue, and cited the controversy over leaked emails of a handful of climate scientists as his reason for questioning the EPA’s endangerment finding. In so doing, Cuccinelli is undercutting his own state’s effort to examine how climate change is affecting Virginia’s citizens and economy, and to identify actions the state and localities should take to address it. 

“Mr. Cuccinelli is taking a politicized, polarizing position, when we should be focusing on solutions,” said Trip Pollard, director of SELC’s Land & Community Program and a member of the 2008 Governor’s Commission on Climate Change. “We may not know every detail about climate change, but the evidence we have makes it clear we must act-especially since reducing these emissions will also promote energy independence, a healthier environment, and new jobs.”

The last time Virginia took EPA to court to challenge its authority under the Clean Air Act, it lost, at taxpayers’ expense.  In the 1990s, the state attorney general sued EPA in an attempt to preserve unlawful restrictions on citizens’ right to challenge certain state permitting decisions.  The attorney general’s office lost in the 4th Circuit Court of Appeals, and its petition for U.S. Supreme Court review was denied.  Such legal fights can cost between $350,000and $500,000.

Prior to Cuccinelli’s lawsuit on February 16, the U.S. Chamber of Commerce and others had already challenged the EPA finding, and more than a dozen states and several environmental groups have moved to intervene on EPA’s side. Texas and Alabama also filed challenges the same day as Virginia, and now numerous states have asked to intervene on that side. Yesterday was the deadline to file motions to intervene. The cases have been consolidated by the D.C. Circuit. If granted intervenor status by the court, SELC and others will be full parties to the litigation.