SUPREME COURT TO REVIEW NARROW SLICE OF EPA’S GHG AUTHORITY

Tamar Hallerman
GHG Monitor
10/18/13

The Supreme Court has agreed to hear a second climate-related case this term, teeing up a docket that could have an impact on President Barack Obama’s environmental agenda. The court announced plans Oct. 15 to review whether the Environmental Protection Agency was correct in its determination that its 2010 regulations limiting tailpipe emissions from cars and light-duty trucks triggered permitting requirements for stationary sources like power plants under the Clean Air Act. The Supreme Court accepted six petitions for review filed by trade groups and high-emitting states—and denied the review of three others—but said it would only consider a relatively narrow question regarding EPA’s regulatory authority over greenhouse gas emissions. The court is expected to hear the case early next year.

The Supreme Court will be examining a portion of a determination made by the U.S. Court of Appeals for the District of Columbia last year. The lower court’s unanimous ruling stated that EPA was correct in promulgating rulemakings to limit greenhouse gas emissions from stationary sources and automobiles under the authority of the Clean Air Act. Trade groups and high-emitting states like Texas and Virginia had challenged the validity of EPA’s regulatory authority on four fronts, questioning the agency’s endangerment finding, as well as its tailpipe rules, Prevention of Significant Deterioration (PSD) permitting program for stationary sources and the agency’s so-called ‘tailoring rule,’ which seeks to shield smaller point sources of emissions like schools from being required to acquire permits. But in a strongly-worded ruling, the lower court said “EPA’s interpretation of the governing Clean Air Act provisions [was] unambiguously correct.”

Enviro. Groups, Industry Claim Victory

Both industry and environmental groups proclaimed victory in the aftermath of the Court’s announcement. Environmental groups were pleased that the Supreme Court rejected the call from petitioners challenging EPA’s so-called ‘endangerment finding,’ the landmark 2009 determination that greenhouse gases pose a threat to public health that has formed the regulatory bedrock for subsequent carbon standards and other major rulemakings limiting air pollutants from power plants. The Environmental Defense Fund’s General Counsel, Vickie Patton, said in a statement that the court’s decision to let the finding stand makes it “abundantly clear, once and for all, that EPA has the both legal authority and the responsibility to address climate change and the carbon pollution that causes it.” In a separate statement, Sierra Club Executive Director Michael Brune said, “The Court’s action clears the way for EPA to move forward on carbon pollution standards for power plants, the centerpiece of the President’s climate plan.”

Industry-oriented groups, meanwhile, also cited victory in the fact that the Court could disrupt EPA’s efforts to regulate emissions. “While the recently proposed power plant rule arises under other alleged Clean Air Act authority, today’s action is still significant because it may afford the Court the opportunity to clarify the role of carbon under the Act,” said Scott Segal, director of the Electric Reliability Coordinating Council. “Given that significant and well-crafted legal challenges are doubtless on the way for the power plant rules, the EPA would be well advised to take the opportunity to develop regulations that stick to the clear intent of the Act rather than pushing the envelope in favor of a political carbon agenda.”

One of the industry petitioners that challenged EPA’s authority, the American Petroleum Institute, said the permitting rules overstep EPA’s authority as defined under the Clean Air Act. “The EPA is seeking to regulate U.S. manufacturing in a way that Congress never planned and never intended,” API Vice President and General Counsel Harry Ng said in a statement. “The Clean Air Act clearly only requires pre-construction permits for six specific emissions that impact national air quality—not greenhouse gases.”

CSAPR on Docket

This week’s announcement sets up another major climate-related case for the new term, which kicked off last week and stretches through June. The Supreme Court previously agreed to hear an appeal of a lower court ruling that vacated EPA’s ‘good neighbor’ standards. That rulemaking, known as the Cross-State Air Pollution Rule (CSAPR), would have required states to sharply limit fine pollutants like SO2 and NOx from power plants that contribute to soot and smog and are easily transported across state lines to harm air quality in downwind states.

While the high court took up several water-related cases last term, justices have not reviewed any climate cases since 2011, when the court rejected the claim that states can sue electric utilities for the greenhouse gases they emit under public nuisance laws in the case American Electric Power Co. v. Connecticut. The court also heard another landmark environmental case in 2007, when it determined in 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. That ruling provided the legal underpinning for EPA’s endangerment finding two years later.