Justices struggle for common ground on EPA emission rules

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Justices struggle for common ground on EPA emission rules

Postby Wilberforce » Tue Feb 25, 2014 8:44 pm

Justices struggle for common ground on EPA emission rules

Jeremy P. Jacobs, E&E reporter
Greenwire: Monday, February 24, 2014

March 26-28, 2014

A divided Supreme Court appeared to search today for a middle ground in the challenge from industry and a dozen states to a U.S. EPA crackdown on heat-trapping greenhouse gas emissions.

A dozen states and industry groups including the U.S. Chamber of Commerce and American Chemistry Council want the court to overturn EPA's inclusion of greenhouse gases in an air permitting programs for emissions from power plants and other industrial sites.

During unusually long arguments, the justices frequently fractured along ideological lines, with the liberal wing asking pointed questions of the challengers and conservatives taking issue with EPA.

But two of the court's swing votes, Chief Justice John Roberts and Justice Anthony Kennedy, were troubled by EPA's decision to revise the statutory mandate that industrial sources must obtain a permit if their emissions exceed 100 tons per year of a pollutant.

EPA raised the minimum to between 75,000 and 100,000 tons per year for greenhouse gases because thousands of small emission sources -- such as hospitals and apartment buildings -- would need permits under the 100-ton standard. That, in turn, would overwhelm EPA's permitting ability.

Kennedy told Solicitor General Donald Verrilli that he "couldn't find a single precedent that seems to support your position."

The Prevention of Significant Deterioration, or PSD, program requires facilities to obtain permits before construction or modification. The permits require them to use the "best available" technology to control emissions of harmful pollutants.

After concluding greenhouse gases pose a threat to human health, EPA issued standards limiting emissions from motor vehicles. It then claimed, in 2010, that the tailpipe rules triggered regulation of greenhouse gases from other sectors through the Clean Air Act, including the PSD program. The agency then issued regulations.

Most of the arguments today centered on the definition of "any air pollutant" and whether it applied to greenhouse gases after the tailpipe rule.

Industry attorney Peter Keisler of Sidley Austin LLP argued "any air pollutant" can mean different things for different Clean Air Act programs. For the PSD program, he said, it should be defined as a pollutant that has an "area specific air quality impact."

But the court's liberal wing maintained the agency deserves deference.

"This is the apex of Chevron deference," said Justice Elena Kagan, referring to the Supreme Court's 1984 decision in Chevron v. Natural Resources Defense Council, which held courts must defer to agency interpretations when the law is ambiguous.

The justices also appeared perplexed by what was at stake in the case. Keisler noted that it would be more appropriate for EPA to set national standards for greenhouse gases from stationary sources, which the agency is currently drafting through the Clean Air Act's New Source Performance Standards.

"Then I don't know what this case is about," Justice Stephen Breyer said.

Verrilli emphasized that the PSD and NSPS programs are designed to work in tandem, with PSD taking the lead while the NSPS rules are drafted.

"PSD is supposed to fill the breach," Verrilli said.

Still, the justices appeared to be looking for a compromise.

Kennedy and Roberts indicated they felt bound by the court's precedent in 2007's Massachusetts v. EPA, which held that EPA must regulate greenhouse gases as a pollutant under the Clean Air Act if the emissions are deemed threats to public health or welfare.

But Roberts appeared reluctant to back everything EPA has done. He and other justices repeatedly referred to a solution offered by conservative appellate Judge Brett Kavanaugh that would allow EPA to include greenhouse gases in PSD permits for facilities that have to obtain the permits because of their emissions of other pollutants.

Roberts noted that according to briefs filed to the court -- including the American Chemistry Council's opening brief -- that interpretation would still cover 83 percent of the national greenhouse gas emissions. EPA's interpretation would cover 86 percent of those emissions -- a 3-point difference (Greenwire, Oct. 16, 2013).

The liberal Breyer seemed to largely support EPA's interpretation, but he also told Verrilli that "even if you lose you can still regulate 83 percent."

Roberts also appeared receptive to Keisler's argument that greenhouse gases are different from the other pollutants covered by the PSD program.

Greenhouse gas controls, he said, relate "to energy consumption as opposed to particulate emissions."

Verrilli emphasized, though, that there are "many other pollutants that EPA has regulated for years and used as a trigger" for the PSD program.

All of the regulations represent the Obama administration's stated desire to use executive action to address climate change in the absence of action by Congress. Industry and Republican-leaning states have challenged all of the rules in court.

The challengers have lost on those challenges so far, and the Supreme Court declined to review the endangerment finding and the tailpipe rules, choosing to focus only on the narrow question of whether the auto rules triggered inclusion of greenhouse gases in the PSD program.

EPA contends the Clean Air Act clearly states that they do and points to regulations put on the books in 1978, 1980 and 2002 that show the agency adding pollutants to the PSD program after EPA regulated them under different sections of the law.


Supreme Court skeptical of greenhouse gas permits
Richard Wolf, USA TODAY 3:13 p.m. EST February 24, 2014
Justices appear to be leaning toward a ruling that would eliminate just one method the Environmental Protection Agency uses to regulate greenhouse gas emissions from stationary sources

WASHINGTON — The Supreme Court on Monday appeared headed toward restricting the federal government's authority to require permits for major emitters of greenhouse gases.

Such a ruling from the court's conservative wing wouldn't affect an effort by the Obama administration to regulate the sources of global warming, but it would eliminate one method of doing so.

At issue is the Environmental Protection Agency's decision to change the threshold in the Clean Air Act for the amount of emissions from a power plant, refinery or other stationary source that requires a permit. Liberal justices said it was a reasonable move to avoid an absurd over-regulation of greenhouse gas emissions, but conservatives said it went too far.

"I couldn't find a single precedent that strongly supports your position," Justice Anthony Kennedy, the most likely swing vote, said in response to U.S. Solicitor General Donald Verrilli's defense of the EPA's move.

Kennedy was in the majority when the high court ruled 5-4 in 2007 that greenhouse gases are an air pollutant and the EPA has authority to regulate motor vehicle emissions. If he switches sides on whether that extends to stationary sources such as power plants, it could seal the program's fate.

Though the case focuses on what Verrilli called "an urgent environmental problem ... one that gets worse with the passage of time," the court's ruling is likely to have only limited impact. That's because the government has other ways of regulating greenhouse gas emissions from stationary sources.

Industry and state government opponents of those regulations argued in court that cumbersome permitting programs used for common air pollutants should not apply to greenhouse gases such as carbon dioxide, which are emitted in much greater quantities but have limited impact on local air quality.

Peter Keisler, the attorney for a coalition of industry groups challenging the regulations, called the permitting program operated by more than 90 state and local authorities a form of "command and control."

Still, even the opponents didn't question the danger of greenhouse gases or the government's first effort to suppress them via tailpipe emissions. Those are matters of settled law.

Unlike other air pollutants, carbon dioxide emissions that contribute to global warming are so ubiquitous that the EPA raised the law's threshold level requiring a permit from 100 tons per year to at least 75,000 tons. Opponents say that amounts to rewriting an act of Congress — even though the higher threshold makes it easier for some to avoid the permitting requirement.

Several liberal justices said the EPA's decision to raise the threshold at which greenhouse gas emissions would require a permit made sense, since Congress didn't anticipate the problem of global warming. In cases like that, it's customary to defer to the regulatory agency.

"Statutes all the time have implicit exceptions," Justice Stephen Breyer said. "That's the most common thing in law."

"An agency cannot make a round hole square by rewriting unambiguous statutory language," said Texas Solicitor General Jonathan Mitchell, representing state government opponents.

The case is a sequel to those decided by the high court in 2007 and 2011 — cases that affirmed the government's authority to regulate greenhouse gases from motor vehicles under the 1970 Clean Air Act.

Industries, a coalition of conservative states, Republican lawmakers and others claim the law doesn't empower the administration to regulate greenhouse gas emissions from power plants and other stationary sources. They say those regulations, begun in 2010, risk jobs and economic development.

The administration, along with environmental groups and a number of other states, including California and New York, say the Clean Air Act was meant to address all air pollutants, including greenhouse gases. Once the administration addressed auto and truck emissions, they argue, the next natural step was stationary sources.

The EPA's decision to multiply the level of emissions requiring a permit was simply common sense, proponents say, to avoid requiring permits from more than 80,000 mid-size businesses, hospitals, universities, apartment buildings and shopping malls.

"All of my relatives are together — they have to have a permit," Breyer quipped. Later advised by Verrilli that humans are considered to be "net neutral" on carbon dioxide emissions, Breyer breathed a sigh of relief. "That means I'm a part of sustainable development!" he said.

The showdown over greenhouse gases represents the second major environmental case to come before the court this term. The other one, argued in December, tests the legality of a federal rule requiring that upwind states slash ozone and fine particle emissions because of their impact on downwind states.

http://www.usatoday.com/story/news/nati ... s/5779185/
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