UARG involved challenges to EPA’s attempt to regulate GHGs from major stationary sources of air pollutants (power plants, factories, etc.) after its decision to regulate GHGs from mobile sources was upheld. Justice Scalia
joined with the conservative block to rule 5-4 that EPA lacked “standalone”
authority under the Clean Air Act to regulate GHG emissions from stationary
sources. He then, however, went on to join
with the more liberal block (along with Chief Justice John Roberts and Justice Anthony Kennedy) to affirm 7-2 that
EPA could regulate GHG emissions from stationary sources, so long as those
facilities otherwise required an air permit for emitting conventional air
pollutants. This means that there are
now seven justices on the Supreme Court who affirmed that the Clean Air Act
covers GHG emission since its 2006 decision in Massachusetts v. EPA.
In the Beginning
There Were Mobile Sources
Section 202(a)(1) of the Clean Air Act (CAA), 42 U.S.C. §
7521(a)(1), requires the Administrator of the Environmental Protection Agency
to set emission standards for "any air pollutant" from motor vehicles
or motor vehicle engines "which in his judgment cause[s], or contribute[s]
to, air pollution which may reasonably be anticipated to endanger public health
or welfare." In 2003, the Bush Administration’s EPA denied a petition by
twelve states (but not Pennsylvania) and several cities to regulate carbon
dioxide and other GHGs from motor vehicles under the CAA. EPA took
the position that it lacked the authority to regulate GHGs under the CAA,
and even if it had the authority, regulation at that time was not consistent
with President Bush’s policies to address climate change.
Total US Greenhouse Gas Emissions by Economic Sector in 2012 from EPA's Inventory of Greenhouse Gas Emissions |
Though President Bush issued an Executive
Order requiring EPA to use its authority under the CAA to regulate carbon
emissions from mobile sources in May 2007, it would not be for another two and
one half years (December 2009) before EPA issued its "Endangerment and
Cause or Contribute Finding, " which found, as required by Massachusetts
v. EPA, that motor vehicle emissions of six GHGs threatened the health
and welfare of current and future generations, which set up for the first time
the promulgation of federal regulations to control carbon emissions from mobile
sources. This led to the establishment of greenhouse gas emission standards
under Section 202 of the CAA (the so-called "Tailpipe Rule").
And Then There Were New
and Modified Stationary Sources (The Tailoring Rule)
Large stationary sources challenged the Tailpipe Rule
because of concern that regulation of GHG emissions from mobile sources would
lead to exactly what happened here, that EPA would have to regulate GHG
emissions from stationary sources. The CAA says that its permit requirements apply to stationary sources emitting "any air pollutant." The EPA, in 2010, took the position that once the agency found that GHGs were enough to warrant vehicle regulations, the Act's permitting requirements were automatically triggered. Industry argued that the cost of regulating GHGs from stationary
sources was so large that the EPA should not have regulated tailpipe emissions.
A unanimous D.C. Circuit Court of Appeals, in Coalition for Responsible Regulation v.
EPA, rejected this argument, holding
instead that the EPA lacked any discretion at all in setting tailpipe emissions
once it found that that greenhouse gases endanger public health and welfare.
The D.C. Circuit Court’s ruling cleared the way for EPA to
move forward with regulating major stationary sources of GHG emissions. The challenge for EPA, however, was that the
CAA defines "Major" as any source that emits 100 tons per year of a
regulated pollutant, which only captures large facilities when measuring
criteria pollutants, but when measuring GHGs, the same standard would capture
thousands of very small sources such as homes and businesses. To avoid this problem, EPA
sought to interpret or "tailor" its GHG rule to only apply to sources
emitting 100,000 tons per year of GHGs (and existing sources making
modifications that would increase emissions by 75,000 tons per year).
Industry challenged application of the CAA to stationary sources, and EPA”s
attempt to "tailor" the language of the CAA.
Utility Air
Regulatory Group v. EPA
In UARG, the Supreme Court reviewed
whether EPA’s Endangerment Finding and regulation of GHGs under Section 202 of
the CAA triggered regulation of GHGs under EPA’s Prevention of Significant
Deterioration (PSD) and Title V permitting programs, and whether EPA properly
excluded a great number of those sources from regulation under its Tailoring
Rule. It should be noted that while
industry tried to again challenge EPA’s Endangerment Finding and setting of GHG
standards for motor vehicles, the Supreme Court limited its consideration to
whether the agency “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 greenhouses gases.”
The Court ruled that EPA could not interpret the CAA in a
manner that applied its PSD Program to sources emitting solely GHGs, as that
would be inconsistent with the CAA’s structure and design, which intended only
to impose those burdens on large facilities. The Court also held that EPA improperly attempted to "tailor"
the CAA’s unambiguous numerical definitions of "major" source. Nonetheless, the Court said that EPA reasonably interpreted the CAA as requiring sources that
required a PSD permit to comply with Best Available Control Technology (BACT)
respecting GHG emissions. The CAA requires the application of BACT "for
each pollutant subject to regulation" under the Act.
The case is Utility
Air Regulatory Group v. Environmental Protection Agency, No. 12-1146.
George Jugovic, Jr. is chief counsel for PennFuture. He is based in Pittsburgh.
George Jugovic, Jr. is chief counsel for PennFuture. He is based in Pittsburgh.
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