Turn to the nation's most objective and informative daily environmental news resource to learn how the United States and key players around the world are responding to the environmental challenges...
June 23 — A U.S. Supreme Court decision limiting the scope of the Environmental Protection Agency's greenhouse gas permitting program won't directly impact its efforts to regulate carbon dioxide from power plants.
However, the June 23 decision written by Justice Antonin Scalia is providing plenty of rhetorical ammunition to industry groups that argue the agency's proposed carbon dioxide standards for existing power plants exceed its statutory authority.
In a footnote, Scalia acknowledged the EPA's authority to regulate carbon dioxide emissions from industrial sources such as power plants under Section 111 of the Clean Air Act, but attorneys said his opinion is full of language regarding regulatory overreach that should caution the agency as it readies its rules.
The court in its decision ruled that greenhouse gases can't trigger the permitting requirements because they are emitted in quantities that would make enforcing the statutory permitting thresholds impractical.
In the opinion, Scalia said that the EPA's permitting program was “an enormous and transformative expansion in EPA's regulatory authority without clear congressional authorization.”
He also warned that, “When an agency claims to discover in a long-extant statute an unheralded power to regulate ‘a significant portion of the American economy,' Brown & Williamson, 529 U. S., at 159, we typically greet its announcement with a measure of skepticism.”
Opponents of the EPA's plan to regulate carbon dioxide emissions from existing power plants (RIN 2060-AR33) say that the agency has overstepped its regulatory authority by proposing state-level emissions rates rather than setting a standard specific to individual power plants (79 Fed. Reg. 34,830).
Scalia's opinion could be used to make that argument, attorneys said.
“You would be foolish not to be citing this language in the first paragraph of your comments,” Roger Martella, a partner at Sidley Austin LLP who represented the American Chemistry Council in the litigation, told reporters June 23.
Thomas Lorenzen, a partner at Dorsey & Whitney LLP, told Bloomberg BNA that the decision discusses the types of unit-specific controls such as carbon capture that can be applied to industrial facilities as part of the best available control technology review.
Industry groups could use that language to argue the EPA overstepped its bounds when it proposed carbon dioxide standards for existing power plants that would seek emissions reductions through renewable energy investments and demand reduction programs outside of the power plants themselves.
“EPA had hoped to come out of this with their 111(d) authority unquestioned,” Lorenzen said. “That's where industry gained something. There are parts of this opinion that can be used to say EPA is overreaching.”
Lorenzen defended the EPA's permitting rule before the U.S. Court of Appeals for the District of Columbia Circuit during his time at the Justice Department.
Ann Weeks, senior counsel at the Clean Air Task Force, told Bloomberg BNA that the question of how far the EPA can reach beyond the facility for emissions reductions wasn't before the Supreme Court, but the decision indicates it is an issue the justices are aware of.
“Clearly these justices are thinking about the distinction about what can be done at a facility and how far beyond the facility you can look,” she said.
While Scalia's opinion seems to bolster industry's arguments against the EPA's proposed power plant rule, Nathan Richardson, a resident scholar at Resources for the Future, told Bloomberg BNA that doesn't indicate whether there are five votes to overturn the EPA's rule should it come before the Supreme Court.
“It doesn't tell you whether you have the votes for that in another case,” he said.
Though the decision curbs the scope of the EPA's greenhouse gas permitting program, Scalia said the EPA will still regulate 83 percent of greenhouse gas emissions from stationary sources even after the court decided that greenhouse gases alone cannot trigger prevention of significant deterioration or Title V permitting requirements.
That is only 3 percent less than the EPA would be able to regulate if greenhouse gases were determined to trigger the permitting regulations.
“The vast majority of emissions the EPA sought to regulate it can regulate,” Professor Richard Revesz, director of the Institute for Policy Integrity at the New York University School of Law, told reporters June 23.
While the decision is the first legal setback for the EPA's greenhouse gas regulatory program, the agency's fundamental authority to regulate greenhouse gas emissions under the Clean Air Act has been reaffirmed by the Supreme Court for a third time, attorneys said.
“It's now safe to say, if it wasn't already, that it's settled law the EPA has authority to regulate greenhouse gases under the Clean Air Act,” Sean Donahue, an attorney who represented environmental groups in the lawsuit, told reporters June 23.
To contact the reporter on this story: Andrew Childers in Washington at firstname.lastname@example.org
To contact the editor responsible for this story: Larry Pearl at email@example.com
The Supreme Court's opinion in Util. Air Regulatory Grp. v. EPA is available at http://www.supremecourt.gov/opinions/13pdf/12-1146_4g18.pdf.
All Bloomberg BNA treatises are available on standing order, which ensures you will always receive the most current edition of the book or supplement of the title you have ordered from Bloomberg BNA’s book division. As soon as a new supplement or edition is published (usually annually) for a title you’ve previously purchased and requested to be placed on standing order, we’ll ship it to you to review for 30 days without any obligation. During this period, you can either (a) honor the invoice and receive a 5% discount (in addition to any other discounts you may qualify for) off the then-current price of the update, plus shipping and handling or (b) return the book(s), in which case, your invoice will be cancelled upon receipt of the book(s). Call us for a prepaid UPS label for your return. It’s as simple and easy as that. Most importantly, standing orders mean you will never have to worry about the timeliness of the information you’re relying on. And, you may discontinue standing orders at any time by contacting us at 1.800.960.1220 or by sending an email to firstname.lastname@example.org.
Put me on standing order at a 5% discount off list price of all future updates, in addition to any other discounts I may quality for. (Returnable within 30 days.)
Notify me when updates are available (No standing order will be created).
This Bloomberg BNA report is available on standing order, which ensures you will all receive the latest edition. This report is updated annually and we will send you the latest edition once it has been published. By signing up for standing order you will never have to worry about the timeliness of the information you need. And, you may discontinue standing orders at any time by contacting us at 1.800.372.1033, option 5, or by sending us an email to email@example.com.
Put me on standing order
Notify me when new releases are available (no standing order will be created)