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.
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:
- 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.
- 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.
- New York Times, Adam Liptak: Supreme Court to Hear Challenge to E.P.A. Rules on Gas Emissions (Oct. 15, 2013)
- Legal Newsline Legal Journal, Jessica M. Karmasek: U.S. SC to hear challenge to EPA’s greenhouse gas regulation (Oct. 15, 2013)