EPA GHG Emissions Rules Will Get Supreme Court Review
The Supreme Court has agreed to review whether the EPA can require greenhouse gas emissions permits for stationary sources such as refineries.
In its Oct. 15 order the court said it would limit its review to “whether 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.”
The court did not, however, agree to hear other appeals to the EPA’s regulatory authority submitted by business groups and states such as whether GHG emissions constitute a pollutant and its 2007 Massachusetts vs. EPA decision that the EPA has a “statutory obligation” to regulate GHGs under the Clean Air Act.
“The key today is not only what the court did agree to hear but what it didn’t,” says Thomas Lorenzen, who recently left the US Justice Department after more than a decade as its assistant chief in the Environment and Natural Resources Division. He’s now a partner at international law firm Dorsey & Whitney.
Because the court only agreed to review the EPA’s interpretation that the so-called “tailpipe rules” triggered Prevention of Significant Deterioration, or PSD, permitting for stationary sources, Lorenzen tells Environmental Leader that the “EPA will press ahead with its new source performance standards for GHG emissions from new power plants and its GHG emissions guidelines from existing power plants.”
Even a Supreme Court decision invalidating EPA’s interpretation of the PSD provisions of the statute is unlikely to affect the agency’s authority to issue carbon pollution limits from new and existing power plants, Lorenzen says.
Environmentalists and industry groups alike declared Tuesday’s Supreme Court action a victory. The Sierra Club and Environmental Defense Fund praised the court’s decision to deny legal challenges to the EPA’s determination that greenhouse gases threaten the health of people and the environment.
Meanwhile industry groups applauded the court’s decision to review the EPA’s greenhouse gas regulations from stationary sources.
The National Association of Manufacturers (NAM) — one of the industry groups that filed a petition challenging the EPA’s GHG rules — said “manufacturers are pleased” with the court’s decision. NAM President and CEO Jay Timmons called GHG regulations from stationary sources “one of the most costly, complex and harmful regulatory issues facing manufacturers and threatening our global competitiveness.”
Oil industry groups American Petroleum Institute (API) and American Petrochemical & Fuel Manufacturers (APFM), both of which also petitioned the court to review the EPA’s GHG rules, applauded the court’s action as well.
The EPA’s “overreach can have enormous implications on US competitiveness and the prices that consumers pay for fuel and manufactured goods. We’re pleased that the court has agreed to review our petition and we look forward to presenting our case,” said Harry Ng, API vice president and general counsel.
AFPM general counsel Rich Moskowitz said Tuesday’s Supreme Court decision “brings us one step closer to correcting a very costly regulation that will put significant strain on every state’s resources.”
Lorenzen said there’s “something for everyone in what the court did today.” But the real winners and losers will be determined in 2014 when the Supreme Court issues a ruling.
In June 2012, a federal appeals court upheld the EPA’s limits on greenhouse gas emissions from car tailpipes, factories and power plants, ruling that the EPA’s interpretation of the Clean Air Act was “unambiguously correct,” and that its finding that these emissions posed a public health risk is “neither arbitrary nor capricious.”
“A DC court concluded that the statue was crystal clear and that you have to apply PSD,” Lorenzen says. “It’s possible the Supreme Court will do the same. We don’t know until next spring.”
Photo Credit: industrial plant emissions via Shutterstock
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