Clean Air Act

Environmental Defense v. Duke Energy Corp.

Issues

Should the Fourth Circuit have heard this case when the Clean Air Act dictates that parties can only challenge CAA regulations in the D.C. Circuit? And is the EPA’s longstanding regulatory definition of “increase” unlawful if it is consistent with the CAA definition of “modification,” which governs the NSPS and PSD?

 

In 2000, the Environmental Protection Agency sued Duke Energy Corporation for making a number of upgrades to its power plants without filing for permits under the Prevention of Significant Deterioration (“PSD”) program. The PSD program, which was added to the Clean Air Act in 1977, regulates “major modifications” to existing power plants. Duke Energy first argues that the 1971 New Source Performance Standards (“NSPS”) provide a definition of “modification” that governs the PSD program; Duke then argues that the changes to its plants do not fall within the NSPS definition of “modification.” In 1980 the EPA promulgated regulations providing a more stringent definition of “modification,” and Environmental Defense, which has stepped in as a plaintiff in the case, maintains that this more stringent definition applies to the PSD. The Court of Appeals for the Fourth Circuit agreed with Duke Energy, holding that the NSPS definition of “modification” must be applied to the PSD program. The Supreme Court’s decision will affect how energy companies assess the costs of rebuilding or renovating older plants, and it could potentially lead environmentalists to push for more stringent standards for changes made to existing plants.

Questions as Framed for the Court by the Parties

Whether the Fourth Circuit's decision violated Section 307(b)of the Act, which provides that national Clean Air Act regulations are subject to challenge “only” in the D.C. Circuit by petition for review filed within 60 days of their promulgation, and “shall not be subject to judicial review” in enforcement proceedings, 42 U.S.C. 7607(b); and

Whether the Act's definition of “modification,” which turns on whether there is an “increase” in emissions and which applies to both the NSPS and PSD programs, rendered unlawful EPA’s longstanding regulatory test defining PSD “increases” by reference to actual, annual emissions.

In 1988, Duke Energy Corporation (“Duke”), which provides energy to customers in North and South Carolina, began the process of upgrading coal-fired generators in eight of its plants. Environmental Defense v. Duke Energy, 411 F.3d 539, 542 (4th Cir. 2005).

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Environmental Protection Agency v. Calumet Shreveport Refining, LLC

Issues

Does the U.S. Court of Appeals for the District of Columbia Circuit have exclusive venue over litigation involving the Clean Air Act’s Renewable Fuel Standard program because the Environmental Protection Agency’s determinations are “nationally applicable” or, alternatively, “based on a determination of nationwide scope or effect?”

This case concerns the proper venue for litigating the Clean Air Act’s Renewable Fuel Standards. The EPA argues that its actions pursuant to these standards must go to the D.C. Appeals circuit. This is because the EPA contends that its actions were either nationally applicable, since they affect refineries in multiple circuits, or based on a determination of nationwide scope, since they stem from agency determinations about the Renewable Fuel Standard’s scope. Calumet Shreveport Refinery counters that the actions should not exclusively be litigated in the D.C. Circuit but rather in the applicable appeals circuits across the country, since the EPA’s determinations are not nationally applicable, but rather individualized adjudications on the petitions of hundreds of small, local refineries based on particular local circumstances. This case has important implications for the direction of the Supreme Court’s statutory interpretation, as well as shaping the direction of administrative law and the power allotted to executive agencies.

Questions as Framed for the Court by the Parties

Whether venue for challenges by small oil refineries seeking exemptions from the requirements of the Clean Air Act’s Renewable Fuel Standard program lies exclusively in the U.S. Court of Appeals for the District of Columbia Circuit because the agency’s denial actions are “nationally applicable” or, alternatively, are “based on a determination of nationwide scope or effect.”

The Clean Air Act contains a provision regarding Renewable Fuel Standards ("RFS"), which requires that each year, producers across the energy sector must blend certain volumes of renewable fuel with nonrenewable fuel.

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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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HollyFrontier Cheyenne Refining, LLC v. Renewable Fuels Association

Issues

Does the term “extension” in Section 7545(o)(9)(B)(i) of the Renewable Fuel Standards require small refineries to have continuously received the hardship exemptions since 2011 to qualify for a hardship exemption under the statute? 

This case asks the Supreme Court to decide whether the EPA’s Renewable Fuel Standards (“RFS”) requires small refineries to have continuously received the hardship exemption since 2011 to qualify for a hardship exemption under Section 7545(o)(9)(B)(i). Specifically, the Court must determine whether the statutory phrase “extension” acquires one of two definitions: a narrow definition, preferred by the Tenth Circuit and Respondent Renewable Fuels Association (“RFA”), which supports the case for continuity; or a broad reading, supported by Petitioner HollyFrontier Cheyenne Refining (“Cheyenne”), which effectively means to “grant” or “make available.” In selecting the appropriate definition, the Court must decide if and to what extent it should read “extension” apart from its broader statutory context, or consider other factors such as congressional purpose and whether the EPA’s interpretation receives deference. This case has policy implications for the finances of local refineries, economies of local communities, and environmental health.

Questions as Framed for the Court by the Parties

Whether, in order to qualify for a hardship exemption under Section 7545(o)(9)(B)(i) of the Renewable Fuel Standards, a small refinery needs to receive uninterrupted, continuous hardship exemptions for every year since 2011.

In 2005 and 2007, Congress amended the Clean Air Act, 42 U.S.C. § 7401, to direct the Environment Protection Agency (“EPA”) to require gasoline sold in the United States to include an increasing amount of renewable fuel. Renewable Fuels Association v. U.S. Environmental Protection Agency at 1215.

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Massachusetts v. Environmental Protection Agency

Issues

Where the EPA Administrator is required by the Clean Air Act to set auto emission standards for pollutants that may endanger public health, may the Administrator decline to do so for policy reasons not specifically found in the Clean Air Act and does the EPA Administrator actually have authority to regulate certain air pollutants associated with climate change under the Clean Air Act?

 

In October 1999, several environmental groups petitioned the U.S. Environmental Protection Agency (the “EPA”) to use its power to regulate carbon dioxide and other greenhouse gases from new motor vehicles. According to these groups, greenhouse gases should be classified as “air pollutants,” which can be regulated under the Clean Air Act if they “can be reasonably anticipated to endanger public health or welfare.” Among the possible “dangers” to welfare, the Clean Air Act lists effects on “weather” and “climate.” However, almost four years later, the EPA officially denied the petition, saying that the Clean Air Act did not give the EPA the authority to regulate greenhouse gas emissions and, even if it did, the EPA would deny the exercise of such authority. According to the EPA, the causal link between greenhouse gases and global warming has not been proven conclusively. Clearly, the Court’s decision in this case will have a significant effect on federal, state, and local efforts to curb greenhouse gas emissions. Furthermore, the Court’s decision could determine the amount of deference that a federal agency should receive in its determinations and could lend credibility to particular side of the scientific argument concerning the tie of greenhouse gases to global warming.

Questions as Framed for the Court by the Parties

1. Whether the EPA Administrator may decline to issue emission standards for motor vehicles based on policy considerations not enumerated in section 202(a)(1) [of the Clean Air Act].

2. Whether the EPA Administrator has authority to regulate carbon dioxide and other air pollutants associated with climate change under section 202(a)(1).

In October of 1999, the International Center for Technology Assessment (the “CTA”) petitioned the EPA to regulate carbon dioxide and three other greenhouse gasses released by motor vehicles as per § 202(a) of the Clean Air Act, 42 U.S.C.§ 7521(a)(1).

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Michigan v. Environmental Protection Agency; Utility Air Regulatory Group v. Environmental Protection Agency; National Mining Association v. Environment Protection Agency

Issues

Is the EPA required to consider costs when determining whether it is appropriate and necessary to regulate hazardous air pollutants emitted by electric utilities?

 

The United States Supreme Court will consider whether the EPA acted reasonably based on the agency’s interpretation of its obligations under the Clean Air Act when it did not consider the costs, during rulemaking, of regulating the emissions of hazardous air pollutants from oil- and coal-fired electric utilities. The Petitioners argue that because the EPA did not consider  cost  of compliance as a factor in its decision, the EPA’s rule is an incorrect interpretation of the Clean Air Act and is unreasonable. The Respondents counter that the EPA acted reasonably and correctly interpreted the Clean Air Act by not considering  cost  of compliance as a factor in its decision to regulate hazardous air pollutants from electric utility plants. The Court’s decision will implicate the regulation of hazardous air pollutant emissions from electric  utilities,  and may have broader implications for the statutory interpretation of similar regulatory mandates to agencies.

Questions as Framed for the Court by the Parties

The Clean Air Act treats electric utilities differently from other sources of hazardous air pollutants. Other sources are required to limit their emissions if they exceed quantitative thresholds. 42 U.S.C. § 7412(c)(1) & (d)(1). By contrast, before EPA regulates hazardous air pollutants from electric utilities, it must first conduct a study of the hazards to public health resulting from those emissions even after imposition of all the other requirements of the Clean Air Act, and then decide whether it is "appropriate and necessary" to regulate such residual emissions under § 7412 after considering the results of the study. 42 U.S.C. § 7412(n)(1)(A).

The question for the Court is:

Whether EPA's interpretation of "appropriate" in 42 U.S.C. § 7412(n)(1)(A) is unreasonable because it refused to consider a key factor (costs) when determining whether it is appropriate to regulate hazardous air pollutants emitted by electric utilities.

THE SUPREME COURT GRANTED CERT LIMITED TO THE FOLLOWING: Whether the Environmental Protection Agency unreasonably refused to consider costs in determining whether it is appropriate to regulate hazardous air pollutants emitted by electric utilities.

Congress enacted the Clean Air Act (“CAA”) in 1970, including what is now § 7412, to address issue of air pollution, focusing on reducing hazardous air pollutants (“HAPs”). See White Stallion Energy Center, LLC v.

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Ohio v. Environmental Protection Agency

Issues

Should the Supreme Court stay implementation of the EPA’s “Good Neighbor Plan,” a federal default implementation plan for emissions reduction, after that organization disapproved of the emissions reductions plans of twenty-three different states and attempted to implement their own federal plan?

This challenge to administrative action by numerous states, including Ohio (“Ohio et al.”) asks the Court to determine whether a stay of enforcement of the Environmental Protection Agency (“EPA”) default emissions regulations, named the “Good Neighbor Provision,” is appropriate, pending review of the legality of the EPA’s action under the Clean Air Act (CAA). Ohio et al. maintain that they are requesting a stay, which should be approved when considering the irreparable harm to state parties as a result of the implementation of the federal-default rule. Meanwhile, the EPA claims Ohio et al. are actually requesting an injunction, which should only be granted in exceptional circumstances. Ohio et al. further argue that the agency’s disapproval of their state-level implementation plans was an “arbitrary and capricious” action because the EPA failed to consider that state courts would limit the applicability of the federal-implementation plan, leading to a less effective rule. The EPA counters that its consideration of the “reasonableness” of the plan was adequate at the time of its initial promulgation and that it was not required to consider subsequent legal action. The outcome of this case has significant implications regarding the transition to greener energy, specifically related to economic costs, and the success of environmental goals.

Questions as Framed for the Court by the Parties

(1) Whether the court should stay the Environmental Protection Agency’s federal emission reductions rule, the Good Neighbor Plan; and (2) whether the emissions controls imposed by the rule are reasonable regardless of the number of states subject to the rule.

Under the Clean Air Act (“CAA”), states are required to submit a plan that provides for the “implementation, maintenance, and enforcement” of ambient air quality standards consistent with those promulgated by the Environmental Protection Agency (“EPA”).

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Oklahoma v. Environmental Protection Agency

Issues

Is the U.S. Court of Appeals for the District of Columbia Circuit the only venue that can hear challenges to a final EPA action under the Clean Air Act for a single state if the agency published it alongside other states?

This case asks the Supreme Court to determine whether states are permitted to challenge final actions of the EPA in regional circuit courts; or, if publishing a state-specific final action in the same Federal Register notice as actions affecting other states forces challenges to be filed in the U.S. Court of Appeals for the District of Columbia. Oklahoma contends that the final action as it pertains to it is local in nature and should, therefore, be presented in the regional circuit court. The EPA argues that the disapproval action applies nationally, making it reviewable only by the D.C. Circuit. The outcome of this case raises concerns about federalism and forum shopping as well as impacting the effectiveness of the EPA.

Questions as Framed for the Court by the Parties

Whether a final action by the Environmental Protection Agency taken pursuant to its Clean Air Act authority with respect to a single state or region may be challenged only in the U.S. Court of Appeals for the District of Columbia Circuit because the agency published the action in the same Federal Register notice as actions affecting other states or regions and claimed to use a consistent analysis for all states.

The Clean Air Act (“Act”) requires the Environmental Protection Agency (“EPA”) to create and regularly update the National Ambient Air Quality Standards (“NAAQS”). Oklahoma v.

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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 (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.

After the Supreme Court’s decision in Massachusetts v.

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West Virginia v. Environmental Protection Agency

Issues

Under a provision of the Clean Air Act, did Congress prohibit the EPA from issuing rules and standards of performance that could potentially reshape the country's electricity grids and unilaterally decarbonize any sector of the economy?

 

This case asks the Supreme Court to consider the statutory limitations imposed on the Environmental Protection Agency by the Clean Air Act when it attempts to regulate emissions emanating from stationary sources. Petitioner West Virginia argues that the Court should not allow the EPA to issue significant rules that can reshape the country’s electricity grids and thus expand the agency’s power to an unprecedented level. Respondent the Environmental Protection Agency (“EPA”) responds that the Court should not read into the text an artificial restriction because any qualification will be directed at the states, not the federal agency. The Court’s decision in this case has heavy implications for the scope of federal administrative power, climate change policy, and statutory interpretation.

Questions as Framed for the Court by the Parties

Whether, in 42 U.S.C. § 7411(d), an ancillary provision of the Clean Air Act, Congress constitutionally authorized the Environmental Protection Agency to issue significant rules — including those capable of reshaping the nation’s electricity grids and unilaterally decarbonizing virtually any sector of the economy — without any limits on what the agency can require so long as it considers cost, nonair impacts and energy requirements.

In 1963 Congress passed the Clean Air Act, which aimed to “protect and enhance” the quality of our air. Am. Lung Ass'n v. Envtl. Prot. Agency at 930. In 1970, Congress amended the Clean Air Act and granted the Environmental Protection Agency (“EPA”) additional powers to regulate any “new and existing” sources of air pollution originating from stationary sources. Id.

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