Supreme Court Decision Reaffirms EPA’s Clean Air Act Authority Over Greenhouse Gases

The U.S. Supreme Court's decision Oct. 15 to review the Environmental Protection Agency's greenhouse gas permitting requirements also affirmed the agency's fundamental Clean Air Act authority to address climate change.
The court did not solicit argument over the EPA's December 2009 finding that greenhouse gas emissions pose a danger to the public and should be regulated and the subsequent May 2010 emissions standards for vehicles. Instead, the Supreme Court will only consider whether regulating vehicles necessarily triggers a requirement for stationary industrial sources such as power plants and cement kilns to obtain permits for their greenhouse gas emissions.
Environmental advocates were quick to spin the decision as a fundamental win for the EPA, reinforcing its ability to use the Clean Air Act to address climate change.
These cases become a matter of "how that authority gets translated into actual public policy," Vickie Patton, general counsel at the Environmental Defense Fund, told reporters Oct. 15.
The Supreme Court has twice addressed climate change, each time finding that the EPA has the Clean Air Act authority to regulate greenhouse gases. In 2007, (Massachusetts. v. EPA) the court held that the EPA could regulate greenhouse gases as air pollutants under the Clean Air Act. In 2011, (Am. Electric Power Co. v. Connecticut) the court decided 8-0 that states could not bring federal common law nuisance claims against power companies for their greenhouse gas emissions because the EPA already has the authority to regulate climate change under the Clean Air Act.
"There have been numerous challenges to the endangerment finding. The court did not grant review or appeal of any of them," Patton said.
A win for the industry groups challenging the greenhouse gas regulations would eliminate the need for industrial sources to obtain permits, but it would not likely impact the EPA's ability to regulate emissions from power plants and other stationary sources, environmental advocates said.
Industry advocates also parsed the Supreme Court's narrow question as a victory. When the U.S. Court of Appeals for the District of Columbia Circuit upheld the EPA's various greenhouse gas regulations, it dismissed challenges to the tailoring rule on standing grounds. The tailoring rule limits permitting requirements to only the largest industrial sources.
While the Supreme Court is not directly addressing the tailoring rule in these cases, it also omitted questions about the industry groups' standing.
"The court goes right to the substance of the question," Jacob Hollinger, a partner at McDermott Will & Emery LLP, told Bloomberg BNA.