Clean Air Act

Utility Air Regulatory Group v. EPA, American Chemistry Council v. EPA, Energy-Intensive Manufacturers v. EPA, Southeastern Legal Foundation v. EPA, Texas v. EPA, Chamber of Comm. v. EPA, 12-1146, 12-1248, 12-1254, 12-1268, 12-1269, 12-1272 (Consolidated)

Issues: 

Does the Environmental Protection Agency have authority under the Clean Air Act to regulate stationary sources of greenhouse gas emissions?

Following the Supreme Court’s 2007 decision in Massachusetts v. EPA, the EPA began regulating greenhouse gas emissions from mobile sources, such as cars and trucks. The categorization of greenhouse gases an an “air pollutant” under the Clean Air Act automatically triggered the regulation of stationary sources, such as factories, through the EPA’s Prevention of Significant Deterioration and Title V permit programs. However, because the new regulatory framework easily triggered EPA oversight for low levels of emissions, the EPA decided to increase the threshold emissions level for greenhouse gases. Petitioners, including various states and industry groups, assert that the EPA’s regulation of greenhouse gas emissions from stationary sources expands the scope of the Act beyond Congress’s original intent. Accordingly, Petitioners argue that the EPA lacks authority for this regulation. The EPA responds that because greenhouse gases are plainly air pollutants, the agency has the statutory authority to regulate them. Moreover, the EPA contends that this reading of the Act conforms with Congress’s intent to give the EPA broad discretion in regulating air pollution to protect public health and welfare. The Supreme Court’s determination of whether the EPA may continue to regulate greenhouse gases under these programs will significantly impact the United States’ approach to climate change.

Questions as Framed for the Court by the Parties: 

After this Court decided Massachusetts v. EPA, 549 U.S. 497 (2007), the Environmental Protection Agency (EPA) found that its promulgation of motor vehicle greenhouse gas (GHG) emission standards under Title II of the Clean Air Act (CAA), 42 U.S.C. § 7521(a)(1), compelled regulation of carbon dioxide and other GHGs under the CAA's Title I prevention of significant deterioration (PSD) and Title V stationary-source permitting programs. Even though EPA determined that including GHGs in these programs would vastly expand the programs contrary to Congress's intent, EPA adopted rules adding GHGs to the pollutants covered. The panel below held the CAA and Massachusetts compelled inclusion of GHGs and, based on that holding, dismissed all petitions to review the GHG permitting program rules on standing grounds. The questions presented are: 

  1. Whether Massachusetts compelled EPA to in-clude GHGs in the PSD and Title V programs when inclusion of GHGs would (i) transform the size and scope of these programs into something that EPA found would be "unrecognizable to ... Congress," Petition Appendix 345a, 380a, and (ii) expand the PSD program to cover a substance that does not deteriorate the quality of the air that people breathe. 
  2. Whether dismissal of the petitions to review EPA's GHG permit-program rules was inconsistent with this Court's standing jurisprudence where the panel premised its holding that standing was absent on its merits holding that GHGs are regulated "pursuant to automatic operation of the CAA." Id. at 96a. 

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Facts

After the Supreme Court’s decision in Massachusetts v. EPA, categorizing greenhouse gases (GHG) as an “air pollutant” and therefore subject to regulation under the Clean Air Act (CAA), the Environmental Protection Agency (EPA) began regulating GHGs.

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EPA v. EME Homer City Generation

Issues: 

Consolidated with American Lung Association v. EME Home City Generation (12-1183).

  1. Did the EPA permissibly interpret the phrase “contribute significantly” when it balanced achievable emission reduction levels against the cost of achieving such emission reductions?   
  2. Can states wait for the EPA to adopt a rule quantifying each state’s “good neighbor” obligations before they adopt a state implementation plan prohibiting emissions that “contribute significantly” to other states’ pollution problems?

In 1963, in response to growing concerns of pollution, Congress passed the Clean Air Act (CAA). The CAA requires the Environmental Protection Agency (EPA) to set certain air quality standards for harmful pollutants, and includes a “Good Neighbor” provision requiring states to adopt plans that prohibit pollution that would “contribute significantly” to other states’ nonattainment of these standards.  However, the CAA does not define “significant contribution.”  In 2011, the EPA finalized a rule known as the “Transport Rule.”  Mirroring the language of the “good neighbor” provision, the Transport Rule defines emission reduction obligations for several upwind states that “contribute significantly” to downwind states’ nonattainment of the EPA’s air quality standards.  In determining what constitutes a significant contribution, the EPA balanced achievable emission reductions against the cost of achieving those reductions.  However, in EME Homer City Generations v. EPA, the D.C. Circuit struck down the Transport Rule and rejected the EPA’s analysis for determining what constitutes a significant contribution in this context.  These two cases present the Supreme Court with questions about the EPA’s interpretation of its statutory grant of authority under the CAA as well as questions about the jurisdiction of the D.C. Circuit to hear the challenges presented.  This case also raises concerns about federal intervention in state affairs and public health concerns posed by the EPA’s interpretation of the CAA.  Should the Supreme Court decide this case on the merits, the Court’s decision will significantly affect the EPA’s grant of authority to regulate interstate pollution. 

Questions as Framed for the Court by the Parties: 

EPA V. EME HOMER CITY GENERATION

The Clean Air Act, 42 U.S.C. 7401 et seq. (Act of CAA), requires the Environmental Protection Agency (EPA) to establish National Ambient Air Quality Standards (NAAQS) for particular pollutants at levels that will protect the public health and welfare. 42 U.S.C. 7408, 7409.  “[W]ithin 3 years” of promulgation of a [NAAQS],” each State must adopt a state implementation plan (SIP) with “adequate provisions” that will, inter alia, “prohibit[]” pollution that will “contribute significantly” to other States’ inability to meet, or maintain compliance with, the NAAQS. 42 U.S.C. 7410(a)(1), (2)(D)(i)(I).  If a State fails to submit a SIP or submits an inadequate one, the EPA must enter an order so finding. 42 U.S.C. 7410(k).  After the EPA does so, it “shall promulgate a [f]ederal implementation plan” for that State within two years. 42 U.S.C. 7410(c)(1).   

The questions presented are as follows: 

  1. Whether the court of appeals lacked jurisdiction to consider the challenges on which it granted relief.
  2. Whether States are excused from adopting SIPs prohibiting emissions that “contribute significantly” to air pollution problems in other States until after the EPA has adopted a rule quantifying each State’s interstate pollution obligations.
  3. Whether the EPA permissibly interpreted the statutory term “contribute significantly” so as to define each upwind State’s “significant” interstate air pollution contributions in light of the cost-effective emission reductions it can make to improve air quality in polluted downwind areas, or whether the Act instead unambiguously requires the EPA to consider only each upwind State’s physically proportionate responsibility for each downwind air quality problem.

American Lung Association v. EME Home City Generation (12-1183)

QUESTIONS PRESENTED:

The Clean Air Act’s “Good Neighbor” provision requires that state implementation plans contain “adequate” provisions prohibiting emissions that will “contribute significantly” to another state’s nonattainment of health-based air quality standards. 42 U.S.C. 7410(a)(2)(D)(i).  A divided D.C. Circuit panel invalidated, as contrary to statute, a major EPA regulation, the Transport Rule, that gives effect to the provision and requires 27 states to reduce emissions that contribute to downwind states’ inability to attain or maintain air quality standards.  The questions presented are:

  1. Whether the statutory challenges to EPA’s methodology for defining upwind states’ “significant contributions” were properly before the court, given the failure of anyone to raise these objections at all, let alone with the requisite “reasonable specificity,” “during the period for public comment,” 42 U.S.C. 7607(d)(7)(B);
  2. Whether the court’s imposition of its own detailed methodology for implementing the Good Neighbor provision violated foundational principles governing judicial review of administrative decision-making; 
  3. Whether an upwind state that is polluting a downwind state is free of any obligations under the Good Neighbor provision unless and until EPA has quantified the upwind state’s contribution to downwind states’ air pollution problems.  

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Facts

In passing the Clean Air Act, Congress empowered the Environmental Protection Agency (EPA) to set National Ambient Air Quality Standards (NAAQS), the maximum permissible levels of common pollutants released into the air.  See EME Homer City Generation v. EPA, 696 F.3d 7, 12 (D.C. Cir. 2012).

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