Karen Frantz
GHG Monitor
2/28/2014
The Supreme Court this week appeared divided over whether the Environmental Protection Agency has the authority to regulate greenhouse gas emissions from power plants under a Clean Air Act permitting program—although there seemed to be consensus that the EPA still has other means of regulating ghgs from stationary sources. The Court heard oral arguments in Utility Air Regulatory Group v. Environmental Protection Agency this week, and the chief concern was 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.”
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 made 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 Prevention of Significant Deterioration (PSD) permitting program for stationary sources. The Supreme Court agreed to hear the case after the U.S. Court of Appeals for the District of Columbia Circuit unanimously rejected the challenges.
Ruling Likely Comes Down to Kennedy
At oral argument, Justice Anthony Kennedy, who many project is likely to be the swing vote in the case, told the EPA’s lawyer and the U.S. Solicitor General, Donald B. Verrilli Jr. that he “couldn’t find a single precedent that strongly supports your position.” Verrilli conceded that there were not a lot of cases that sustain the argument that the trigger applies. But he added that “why EPA did what it did, it is because this is an urgent problem. Every year that passes, this problem gets worse, and the threat to future generations gets worse. And I think, faced with the obligations that EPA had, it made the most reasonable choice available to it.”
But Justice Stephen Breyer suggested that even if the Court finds against the EPA, that the Agency still has other means of regulating greenhouse gases from power plants. “It’s a question of whether they do exactly the same thing under one provision or another provision,” he said to Peter Keisler, a lawyer representing industry groups. “You agree with them that they could do it under the other one and we’d end up at exactly the same place.” Keisler responded: “But it’s not exactly the same thing, your honor. And it is the difference between having the EPA, through notice and comment rulemaking, establish a national emissions standards and then the plants can deal with that incentive system in the best way they can and figure out how to meet it, versus this command and control PSD mechanism, where 90-plus state and local permitting authorities are each having to decide on their own what controls they think each plant in their area should engage in in order to deal with global warming.”
Also at issue was whether the EPA overstepped its authority when it raised emission thresholds that determined when greenhouse gas-emitting sources were subject to the permitting program to levels 40 to 100 times higher than thresholds set by Congress. The EPA has argued that the thresholds were based on traditional pollutants and were not designed to be applied to GHGs.
