Karen Frantz
GHG Monitor
12/20/2013
Senate Minority Leader Mitch McConnell (R-Ky.), Sen. Rand Paul (R-Ky.) and other legislators from Kentucky filed an amicus brief this week in a case before the Supreme Court challenging the Environmental Protection Agency’s new greenhouse-gas permitting program for power plants and other large stationary sources. In the brief, the lawmakers argued that the EPA overstepped its authority when it raised emission thresholds that determined when greenhouse gas-emitting sources were subject to a Clean Air Act permitting program to levels 40 to 100 times higher than thresholds set by Congress. “I am filing this amicus brief with the Supreme Court today because I believe the Obama Administration is usurping the lawmaking power,” McConnell said.
The amicus brief said that the EPA determined facilities emitting greenhouse gases would be subject to the Clean Air Act permitting requirement under the Prevention of Significant Deterioration [PSD] program if they emit or have the potential to emit 100,000 tons per year of such gases. That threshold is in contrast to the 100 or 250 tons per year threshold for traditional pollutants written into statute by Congress. The brief also said that the EPA “claimed the power to make further alterations to these numerical thresholds on an ongoing basis.” The EPA said on its website, however, that “the thresholds established in the [Clean Air Act] for determining when emissions of pollutants make a source subject to these permitting programs, 100 and 250 tons per year, were based on traditional pollutants and were not designed to be applied to GHGs.”
Only Congress Can ‘Amend or Repeal Statues,’ Brief Argues
The brief argues that the EPA “has construed specialized provisions of the Clean Air Act designed to regulate a limited number of air pollutants for which the EPA has established ‘National Ambient Air Quality Standards’ to apply to any airborne compound regulated under any provision of the Clean Air Act, including carbon dioxide and other greenhouse gases.” It goes on to state, “To avoid the sweeping costs and staggering administrative burdens resulting from its expansive interpretation, the EPA effectively amended specific, numerical permitting thresholds that Congress itself had unambiguously written into the Clean Air Act. This the EPA cannot do. Our Constitution reserves the power to enact, amend or repeal statutes to Congress alone.”
Oral Arguments Set for February
After the Supreme Court ruled in the 2007 case Massachusetts v. EPA that greenhouse gases are air pollutants that could be subject to regulation under the Clean Air Act if the agency makes the determination that they are harmful to human health, the agency declared that “elevated concentrations of greenhouse gases in the atmosphere” pose a threat and promulgated rulemakings to limit greenhouse gas emissions from stationary sources such as power plants, as well as automobiles. A number of states and industry and business groups sued, questioning EPA’s PSD permitting program for stationary sources and lodging other challenges against the Agency. Although the U.S. Court of Appeals for the District of Columbia Circuit unanimously rejected the challenges, the Supreme Court agreed to consider the narrow question of whether the EPA “permissibly determined that its regulation of greenhouse gas emissions from new motor vehicles triggered permitting requirements under the Clean Air Act for stationary sources that emit greenhouse gases.” The court is set to hear oral arguments on Feb. 24, 2014.
