Myths and facts surrounding the Supreme Court's review of GHG emission permitting

Bill Funk

Oct. 17, 2013

On Tuesday, the Supreme Court granted six of the nine petitions challenging a DC Circuit Court of Appeals ruling in favor of the EPA’s rules regulating greenhouse gases under the Clean Air Act. However, the Court granted review of only one aspect of the various petitions: whether the EPA’s use of vehicle emission standards to regulate greenhouse gases triggers permitting requirements for stationary power sources that contribute to carbon pollution.

The regulations at issue implement the Clean Air Act’s Prevention of Significant Deterioration (PSD) program, which regulates new major emitting sources in areas meeting the Act’s minimum standards for at least one of the so-called Criteria Pollutants. In these areas, which include almost everywhere in the United States, the Act requires EPA to impose a permit requirement on major emitting facilities, which would include a best available technology requirement, if the facility emits an air pollutant “regulated under the Act” in excess of a certain amount. The Court rejected other challenges, including challenges to EPA’s determination that greenhouse gases endanger public health as well as challenges asking for reconsideration of the Court’s decision in Massachusetts v. EPA that CO2 is a pollutant regulated by the Clean Air Act.

Despite the narrow review, special interests opposed to environmental regulation have flooded the news with misinformation regarding the EPA’s use of the Clean Air Act to regulate greenhouse gases, whether the Agency has the power to regulate at all and have called for an end to any further regulations to protect the environment and public heath.

Listed below are several myths and corresponding facts regarding the Court’s decision and the EPA’s regulation of greenhouse gases in response to some of the reported misinformation.



According to the American Chemistry Council, the EPA “relied on the costs and absurdities created by its own interpretation of the Clean Air Act to grant itself a continuing license to create and revise the statutory scheme without regard to even the clearest congressional directives.” 



The plain and explicit language of the Clean Air Act requires EPA in PSD areas to require a permit and establish the best available control technology for new major sources of any pollutant regulated under the Clean Air Act.  Pursuant to Mass v. EPA, EPA has regulated CO2 emissions from automobiles under the Clean Air Act, and the Supreme Court denied petitions to reconsider Mass. v. EPA or to question EPA’s determination that CO2 from automobiles endangers the public health and welfare.  Consequently, any “absurdity” is not from EPA’s interpretation of the Clean Air Act but from the statutory structure created by Congress and subject to alteration only by Congress.  Unless and until Congress makes a change, however, EPA is bound to comply with the statutory language.  The difficulties created by subjecting unprecedented numbers of emitters to regulation are not insurmountable and do not require EPA to “rewrite” the statutory language.  Since the beginning of the Act in 1970, EPA has struggled to comply with its difficult directives, and courts have recognized that delays and phased implementation may be necessary to achieve full compliance with those directives.  There is nothing new here.



According to the Texas Attorney General Greg Abbot, "The EPA violated the U.S. Constitution and the federal Clean Air Act when it concocted greenhouse gas regulations out of whole cloth. This is a runaway federal agency, so we are pleased the Obama administration will have to defend its lawless regulations before the U.S. Supreme Court."



The Texas Attorney General either does not know what he is talking about or he does know and he intentionally misrepresents the facts and law.  No one, not even the state of Texas, suggested in various petitions for certiorari that EPA violated the Constitution.  The agency is simply complying with the explicit language of the Clean Air Act in light of the Supreme Court’s decision (over EPA’s objection in Massachusetts v. EPA) that CO2 was an air pollutant as defined by the Clean Air Act. 



The EPA’s conclusions about the dangers posed by greenhouse gases are not supported by adequate evidence, and the agency is not authorized to regulate emissions from stationary sources, like power plants.  



The Supreme Court denied certiorari with respect to whether greenhouse gases pose a danger to public health and welfare. Rather its grant of certiorari was limited to the narrow question whether regulation of CO2 from mobile sources triggers a requirement for permitting requirements for major emitting sources in PSD areas.  However, the language of the Act is explicit.   I would expect no worse than a 7-1 affirmance of the DC Circuit. The more general question whether EPA can regulate stationary sources under Section 111 of the Act is not involved. Indeed, at this point there are only proposed regulations under Section 111. But the answer to that question is equally plain as the language of Section 111 is virtually identical to that in Section 202, which the Supreme Court held in Mass. v. EPA covers CO2 emissions.



According to the American Petroleum Institute’s vice president, “The EPA is seeking to regulate U.S. manufacturing in a way that Congress never planned and never intended. The Clean Air Act clearly only requires pre-construction permits for six specific emissions that impact national air quality – not greenhouse gases.”



The industry is fighting the plain and explicit language of the statute.  Section 165 sets requirements for new “major emitting facilities” in areas meeting at least one of the minimum requirements for so-called Criteria Pollutants, which includes almost all of the United States.  “Major emitting facilities” are defined as a listed type of facility (and the industry concedes they have such listed facilities) that emits more than one hundred tons per year of “any air pollutant.”  In Mass v. EPA, the Supreme Court confirmed that CO2 is an “air pollutant” under the CAA.  Again, industry concedes that its members emit more than the triggering amount. One of the requirements for new major emitting facilities is that they have a permit that includes a requirement that they have the best available control technology (BACT) “for each pollutant subject to regulation under this chapter.”  CO2 is subject to regulation under the mobile source provisions of the “chapter.”  Hence, a permit and BACT for CO2 is required for new major emitting facilities, e.g., new power plants and refineries. 



According to former EPA chief and now industry counsel Jeff Holmstead the permit requirements at issue, “is costly for industry and can delay construction.” Quoted in E&E News he said, “It would be a pretty big deal" if the court ruled against EPA. "It would certainly eliminate a lot of red tape and paperwork."



The permit requirement is important because it would significantly decrease CO2 emissions from what they would be in the absence of the requirement.  It will indeed be costly for coal-fired sources, not so much for gas-fired. It would be a big deal if the Court ruled against EPA, because it would mean the Court, and especially its members who have stressed the importance of statutory language, felt free to play fast and loose with that language.  


(Hopefully) Myth:

The Court will toss out EPA’s entire system for regulating greenhouse gases. 



The only issue before the Supreme Court is the requirement contained in Section 165 of the Clean Air Act, which governs new construction of major sources under the PSD program.  Regulation of stationary sources generally occurs under Section 111 of the Act.  Moreover, the industry argument against coverage of CO2 emissions under Section 165 is the supposed “absurd results” it produces, by requiring permits and controls for millions of emitters, rather than the more finite number originally envisioned.  That problem does not exist under Section 111, which gives EPA the discretion to determine which categories of sources are to be covered.  In other words, even if the Supreme Court were to rule in favor of industry under Section 165, it would not affect coverage of CO2 under Section 111.  Only by overruling Mass v. EPA would the Court’s decision affect coverage under Section 111, but the Court pointedly did not grant certiorari with respect to the decision in Mass. v. EPA.


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