SUPREME COURT YET TO TAKE ACTION ON GHG-RELATED CASES

Tamar Hallerman
GHG Monitor
10/11/13

The Supreme Court has yet to indicate whether it plans to take up cases probing some of the Environmental Protection Agency’s greenhouse gas-related rules in its upcoming term. The high court this week did not take action on nine separate petitions from fossil-reliant states and industry groups challenging some of EPA’s climate-related rulemakings. None of the cases were included on a list of challenges the court has declined to hear for the upcoming term, which kicked off Oct. 7 and will stretch through June. But Reuters reported that justices will discuss whether to take up the cases during a closed-door meeting Oct. 11. The high court is expected to announce whether it will review the petitions on Oct. 15, according to the wire service.

The legal challenges were filed by high-emitting states like Texas and Virginia, as well as business and trade groups like the U.S. Chamber of Commerce and the National Mining Association looking to challenge a lower court ruling that upheld EPA rulemakings limiting GHG emissions from stationary sources and automobiles under the authority of the Clean Air Act. A federal appeals court unanimously ruled in June 2012 that EPA has the authority to regulate greenhouse gas emissions under the Supreme Court’s 2007 decision Massachusetts v. EPA, which clarified 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.

States, industry and business groups had challenged the validity of EPA’s December 2009 ‘endangerment finding,’ which determined that greenhouse gases are a danger to public health. That finding formed the regulatory bedrock for subsequent air quality standards affecting much of the country’s electricity generation fleet. Petitioners also questioned the agency’s tailpipe rule, which established emissions standards for cars and light duty trucks, as well as EPA’s Prevention of Significant Deterioration permitting program for stationary sources. The coalition also challenged the agency’s so-called ‘tailoring rule,’ which shields smaller point sources of emissions like schools from being required to acquire permits.

SO2, NOx Case on Docket

If the high court chooses to take up one of the EPA challenges, it could prove to be another marquee environment case for this term; the Supreme Court previously agreed to hear an appeal of a lower court ruling that vacated EPA’s ‘good neighbor’ standards that would have required states to sharply limit sulfur dioxide and nitrogen oxide emissions from power plants this term. That rulemaking, known as the Cross-State Air Pollution Rule (CSAPR), was finalized by EPA in summer 2011 but stayed later that year. It aimed to curb the emissions of fine pollutants like SO2 and NOx, which are spewed from tall smokestacks at power plants and contribute to soot and smog that are easily transported across state lines and harm air quality in downwind states. The rulemaking would have compelled 28 Eastern and Midwestern states to reduce SO2 and NOx emissions by 73 percent and 54 percent below 2005 levels, respectively, beginning in January 2012. CSAPR would have set up a trading system where states could buy, sell and trade pollution credits tied to emissions reductions, where ultimately the cleanup work would be done where it is cheapest and easiest to do so.

However, the rule had long been an area of contention between EPA, fossil fuel-reliant upwind states and the courts. After a group of 16 upwind states, utilities and coal companies sued the agency, the U.S. Court of Appeals for the District of Columbia ruled 2-1 in August 2012 that EPA exceeded its statutory authority under the Clean Air Act with CSAPR. In its order, the majority wrote that EPA did so by requiring some upwind states to clean up more than their contribution to the increased pollution in downwind states. “EPA has used the good neighbor provision to impose massive emissions reduction requirements on upwind states without regard to the limits imposed by the statutory text,” Judge Brett Kavanaugh wrote for the majority, arguing that upwind states should make emissions reductions in proportion to the size of their contributions to the downwind states’ extra pollution.

In throwing out CSAPR, the court required EPA to go back to the drawing board and draft a new rulemaking—since a ‘good neighbor’ standard is required under the Clean Air Act—which would likely take several years to finalize. In the meantime, it made EPA revert to enforcing a weaker George W. Bush-era standard, the Clean Air Interstate Rule, which the same court threw out in 2008 for not doing enough to protect public health.