Judging from the state's standoff with environmentalists in the 9th Circuit Court of Appeals this morning, neither the change from a Republican attorney general (Rob McKenna) to a liberal Democratic one (Bob Ferguson), nor the change from a moderate Democratic governor (Chris Gregoire) to an environmentalist Democratic Governor (Jay Inslee) has altered the state's opposition to a 2011 lawsuit filed by greens against the state's Department of Ecology. 

The suit, brought by the Washington Enviornmental Council and the Sierra Club, accuses the state of ignoring the Federal Clean Air Act (which requires states to come up with a plan to regulate air pollution) because, they say, Ecology isn't complying with the state's own regulatory plan.

"It's confusing," Washington Environmental Council Deputy Director Becky Kelley says about Inslee's position. "This is clearly a governor who wants to act. But as we've seen with this legislature, it's hard to get new tools, so it's important to hang on to the ones you've got—and use them."

According to the Federal Clean Air Act, states must file a State Implementation Plan (SIP), which defines how states plan to comply with the federal act. Once approved by the feds, the SIPs become law, enforceable in federal court.

Washingtons state's SIP says that the state will define "Reasonably Available Control Technologies" (RACT) to fight "air contaminants," a category environmentalists argue includes greenhouse gases under existing state law, which defines contaminants broadly. (The state acknowledged in court that they haven't used RACTs to fight greenhouse gases).

"They talk a lot about it [fighting climate change]," Janette Brimmer, an attorney with Earthjustice who argued against the state this morning, told PubliCola, "yet they are fighting us tooth and nail."

Is the enviornmentalists argument a stretch? Hardly. A 2009 executive order issued by then-governor. Chris Gregoire said: "Greenhouse gases are air contaminants within the meaning of the state's Clean Air Act and pose a serious threat to the health and welfare of Washington citizens and the quality of the environment."

However, arguing that the SIP wasn't intended to regulate greenhouse gases, the state has not written any RACT rules for the industry to follow.

"They talk a lot about it [fighting climate change]," Janette Brimmer, an attorney with Earthjustice who argued against the state this morning, told PubliCola, "yet they are fighting us tooth and nail."

And losing, so far.

The environmentalists won round one in federal court in 2011, when U.S. district Judge Marsha Pechman ruled that the state was not regulating emissions from the state's biggest oil refineries (owned by BP, ConocoPhillips, Shell Oil, Tesoro, and U.S. Oil), in accordance with the Clean Air Act. These refineries are responsible for six million metric tons of carbon pollution annually. Affirming the key component of the environmentalists' case, Pechman also said greenhouse gas emissions were "air contaminants." 

She wrote: "GHGs fall under this definition and Washington Governor Christine Gregoire's 2009 executive order confirms that, in Washington, 'greenhouse gases are air contaminants.' In sum, based on its plain language, the RACT provision is not discretionary and requires Agencies to establish RACT standards for GHGs."

This morning, the state asked the panel of federal judges to overturn Pechman's earlier ruling, saying they never intended greenhouse gases to fall under that SIP plan and that the citizen activists didn't have standing to sue in the first place.

“Not only are they using state resources to fight simple requirements to reduce climate change pollution in the state," Brimmer said in a statement after this morning's arguments, but "they are also aggressively seeking to take away citizens’ rights to go to court to ensure agencies and large polluting industries follow the law."

WEC's Kelley adds: "Particularly concerning is that the state has suddenly started arguing that citizens don't have the right to sue the state to compel them to regulate pollution."

Both Gov. Inslee's office and  AG Ferguson's office gave me brief statements, ultimately referring me to the Department of Ecology.

Inslee spokeswoman Jaime Smith said:

"The decision to appeal was made by the previous administration, though Governor Inslee supports that decision and believes it is the proper course. The state is appealing because we believe it is not the proper tool to address climate change. The Governor is committed to reducing carbon pollution from all major sources, through the most effective and efficient means possible."
Ferguson's spokeswoman Janelle Guthrie said: "This appeal was filed in April 2012. The Attorney General’s Office is the attorney for our client, the Department of Ecology. For questions regarding the decision to appeal, Ecology is prepared to respond."

Stu Clark, the Air Quality Program Manager at the Department of Ecology, elaborated, saying SIP guidelines only refer to six pollutants on the EPA's "Ambient Standards" list, including carbon monoxide and sulfur dioxide (I feel like I'm singing a song from Hair), but don't include CO2.

He also said RACT rules set a low bar, and the state would rather go after GHG emissions with tools that do a better job reducing emissions.

The state, under Pechman's order, is in the process of drafting RACT rules even as they're trying to upend that process with the appeal.


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