INDUSTRY GROUPS ASK SUPREME COURT TO OVERRULE GHG DETERMINATION

Tamar Hallerman
GHG Monitor
4/26/13

A coalition of trade associations petitioned the U.S. Supreme Court late last week to review and overturn a federal appeals court decision that upheld the Environmental Protection Agency’s blueprint for regulating greenhouse gas emissions from stationary sources. Led by the American Chemistry Council, the industry groups—which include the American Petroleum Institute and the National Association of Manufacturers—filed a joint petition seeking judicial review April 18. The group is particularly challenging what they say is EPA’s intent to regulate greenhouse gas emissions from stationary sources under the Clean Air Act’s Prevention of Significant Deterioration (PSD) program.

The groups said that greenhouse gases cannot be regulated under the PSD program because they are not listed as criteria pollutants under the Clean Air Act’s National Ambient Air Quality Standards (NAAQS). “Quite simply, the rules are fundamentally flawed, as they are based on EPA’s attempt to use the Clean Air Act’s PSD program to regulate greenhouse gases at industrial facilities despite the fact that GHGs are not criteria pollutants with established NAAQS … to interpret it to include GHGs leads to what the EPA has conceded are ‘absurd results,” ACC said in a statement.

Groups Challenge June Appeals Court Ruling

The groups are asking the Supreme Court to reconsider a June 2012 ruling from the U.S. Court of Appeals for the District of Columbia, in which a three-judge panel ruled unanimously in favor of several key EPA determinations. The court first upheld EPA’s December 2009 determination that greenhouse gases are a danger to public health, known as the ‘endangerment finding,’ a methodology that has become the legal bedrock for all of its recent climate-related rulemakings. The Court said the EPA was “unambiguously correct” in promulgating rulemakings to limit greenhouse gas emissions from stationary sources and automobiles under the authority of the Clean Air Act.

The appeals court also upheld EPA’s PSD permitting program for stationary sources, which requires new and modified power plants to install pollution-control technologies to cut back on criteria pollutants like nitrogen oxides, volatile organic compounds and sulfur dioxide. The three-judge panel also dismissed the challenges to the agency’s so-called ‘tailoring’ and ‘timing’ rules, which seek to shield smaller point sources of emissions like schools from being required to acquire pollution permits. “As an initial matter, we note that petitioners fail to make any real arguments against the timing rule,” the ruling says. “To be sure, at one point state petitioners contend that the timing rule constitutes an attempt ‘to extend the PSD and Title V permitting requirements to greenhouse gas emissions.’ This is plainly incorrect.”

In their petition to the Supreme Court, though, ACC and the other industrial groups said the lower court ruling supports a regulatory regime at EPA that “represents the most sweeping expansion of EPA’s authority in the agency’s history, extending its reach to potentially millions of industrial, commercial and residential facilities across the country, at costs estimated to run into tens of billions of dollars per year.” The petition adds, “Yet, that regime is premised on an interpretation of the Clean Air Act which all agree produces ‘absurd results’ that are inconsistent with Congressional intent, and that could be avoided by adopting a reasonable alternative construction of the statute.”

Conservative Groups Aim for Review of Tailoring Rule

Meanwhile, a coalition of conservative groups and a dozen House Republicans petitioned the high court on April 19 to review another aspect of last summer’s lower court ruling. Led by the the Southeastern Legal Foundation, the challenge also included groups such as the Competitive Enterprise Institute and FreedomWorks, as well as Republican Reps. Joe Barton (Texas), John Shimkus (Ill.) and Michele Bachmann (Minn.). That coalition aimed to specifically target EPA’s tailoring rule, which the group said is “fundamentally contrary to the express terms of the Clean Air Act and intent of Congress.” “EPA uses a convoluted, strained and implausible reading of the Clean Air Act to conclude, despite substantial evidence to the contrary, that Congress actually managed to conceal a vast multi-billion dollar regulatory program in several previously unnoticed subparagraphs of the Act,” they said. “In essence, EPA’s GHG program depends upon the assumption that Congress actually succeeded in hiding an elephant in a mouse hole.”