Supreme Court Hears Case Determining Scope of EPA’s Authority to Regulate Greenhouse Gas Emissions under Clean Air Act
On Monday, February 24, the U.S. Supreme Court heard oral arguments for the case Utility Air Regulatory Group v. Environmental Protection Agency.This is the first case since the Court’s Massachusetts v. EPA opinion to address the EPA’s authority to regulate greenhouse gas emissions under the Clean Air Act (CAA). In Massachusetts, the Court held that the EPA did have authority under the CAA. The case could potentially either expand or rein in the EPA’s regulatory authority under the CAA.
The central issue in the case is “whether EPA permissibly determined that greenhouse gas emissions from new motor vehicles triggered permitting requirements under the Clean Air Act for stationary sources that emit greenhouse gases.”
The case primarily concerns “stationary sources” such as power plants and factories, and the permitting requirements to which they are subject under the CAA. Specifically, the case centers on the interpretations of sections 165 and 169 of the CAA, which set up the Prevention of Significant Deterioration (PSD) program requiring that certain new and modified stationary sources implement emissions controls. Section 169 explains that the EPA can regulate “any air pollutant.” The extent to which “any air pollutant” could be regulated was clarified by the “Timing Rule” which took effect in 2010. This rule requires the use of New Source Review and Title V operating permits for the stationary sources. Carbon Dioxide was officially added to the list of air pollutants subject to New Source Review and Title V in early 2011. In order to meet the regulations, a stationary source must use the “best available control technology” for its type of source.
The challengers believe that the EPA has interpreted the “any air pollutant” phrase too broadly, creating absurd results and notably, the EPA acknowledges that belief. Regardless, the opponents to the EPA’s conduct argue that the Massachusetts case in 2007 only concerned the regulations limiting emissions from motor vehicles. They argue that to extend the regulation of GHGs to things other than motor vehicles is too expansive a use of the EPA’s power under the act, and is beyond the scope of the EPA’s regulatory authority. Additionally they argue that the EPA’s internally developed “Tailoring Rule” which mitigated the criteria by which the EPA regulated stationary sources was wrong, as agencies are not authorized to rewrite statutes.
Based on oral argument, it appears that the case may come down to the swing vote of Justice Kennedy. Although it’s impossible to predict how the case will be decided, it appears that based on oral arguments the judicial conservatives (Chief Justice Roberts, Justices Scalia, Thomas, and Alito) sided with the challengers, while the judicial liberals (Justices Breyer, Ginsburg, Sotomayor, and Kagan) sided with the EPA.
The Court is expected to issue a decision by the end of June.