TOP FIVE BLOOMBERG BNA ENERGY AND CLIMATE REPORT STORIES FOR THE WEEK ENDING FEB. 28

USSupremeCourtPhotoAndrewHarrerBloomberg

Oral arguments before the Supreme Court over greenhouse gas emissions made up the top three most read Energy and Climate Report stories, followed by a report that answers common questions on climate science and the urging by the head of the Environmental Protection Agency to keep an open mind on carbon limits for power plants.

1. Supreme Court Considers Compromise on EPA's Greenhouse Gas Permitting

A Feb. 24 story covers oral arguments before the Supreme Court on the issue of whether EPA's regulation of greenhouse gases under the Clean Air Act from vehicles triggers permitting requirements for stationary sources that emit greenhouse gases.

While the outcome of the case won't affect the agency's fundamental authority to regulate greenhouse gas emissions, the lawsuit may provide an opportunity for the court to issue new guidance on how much latitude federal agencies are due when interpreting statutes.

[Here's a little background. The Clean Air Act requires stationary sources with emissions greater than 250 tons per year to obtain prevention of significant deterioration permits (PSD). Sources with emissions greater than 100 tons per year are required to obtain Title V operating permits. Because the trigger would affect a wide swath of small stationary sources, EPA issued a "tailoring" rule so that the PSD program for greenhouse gas emissions would be trigged if new sources emit more than 100,000 tons per year of carbon dioxide-equivalent and modified sources that increase their emissions by more than 75,000 tons per year.]

During oral arguments, the justices seemed to give serious consideration to arguments for limiting the scope of the PSD program, eliminating greenhouse gas emissions as a permitting trigger.

Industry groups argued that the EPA could abandon its longstanding interpretation of the term “air pollutant” to read greenhouse gases out of the prevention of significant deterioration permitting process, eliminating the need to deviate from the statute's emissions thresholds.

2. Attorneys Say Justices Seemed Skeptical of EPA Assertion on Emissions Thresholds

In this Feb. 25 story, attorneys speaking a day after oral arguments said even justices considered most sympathetic to the EPA expressed concerns over how the agency has deviated so far from the statutory emissions thresholds for PSD and Title V permitting programs in its "tailoring" rule.

“I don't see a majority of justices on the court who are going to be willing to support the entirety of the EPA's rule. There were a lot of justices concerned about the EPA's overreach here in terms of the assumption of authority to rewrite the statutes here,” Steven Bradbury, a partner at Dechert LLP who is representing the Southeastern Legal Foundation before the Supreme Court in the case, said.

During the argument, Justice Anthony Kennedy, often the court's swing vote, asked Solicitor General Donald Verrilli  for a precedent that supported the EPA's argument that it could rewrite plain statutory terms on its own discretion.

William Jay, a partner at Goodwin Procter LLP who previously served as an assistant to the solicitor general, said that Kennedy prefers to follow precedent, and the EPA's failure to cite one in its briefs may undermine its argument.

3. Statutory Interpretation Central to Arguments in U.S. Supreme Court Greenhouse Gas Case

This Feb. 24 story also covers the day of oral arguments and the heavy questioning justices had as to the meaning of the phrase “any air pollutant” for purposes of Clean Air Act regulation.

Noting various interpretations advanced on the issue by petitioners, Justice Elena Kagan asked Peter Keisler, counsel for industry petitioners, to explain the interpretation of the phrase for which he was arguing.

In response, Keisler sought to set forth the industry petitioners' main arguments and stated that while other provisions of the Clean Air Act give the EPA authority to regulate greenhouse gases from stationary sources, the PSD provision does not because “the PSD program is exclusively focused on emissions that have area-specific air quality impacts, and not on globally undifferentiated phenomena.”

Following up on Keisler's statements, Justice Ruth Bader Ginsburg asked about the endangerment finding, which refers to greenhouse gases having severe effects at the local level. Keisler responded that the industry petitioners' point is that it is not the kind of measurable area-specific impact. Agreeing with Keisler, Justice Antonin Scalia said it is “certainly not measurable.”

4. Report Gives 'Plain English' Answers to Common Questions on Climate Science

As covered in this Feb. 27 story, scientists from the U.S. and the United Kingdom released a report that provides “plain English answers” to common questions about climate change science.

The report seeks to explain in a question and answer format the evidence behind human-caused climate change, the meaning of the recent slowdown in global warming and other areas of public debate.

“These are the things people want to understand,” Benjamin Santer, a researcher at Lawrence Livermore National Laboratory in California and one of the report's authors, said at a launch event. “They want plain English answers.”

The report, “Climate Change: Evidence and Causes,” was prepared by the U.S. National Academy of Sciences and the Royal Society, the U.K. national science academy.

5. McCarthy Urges Critics to Keep Open Mind, Says EPA Seeks Balance in Power Plant Rule

Remarks by EPA Administrator Gina McCarthy are covered in this Feb. 25 story in which she said she hopes critics of the agency's forthcoming carbon dioxide emissions limits for existing power plants will “give it a chance” and not prejudge the regulation “out of the gate.”

The EPA chief said the emissions standards for existing power plants would attempt to strike the right balance between ambitious reductions in carbon dioxide emissions and flexibility in meeting the standards that recognizes the differences between energy mixes in states.

President Barack Obama has called for the EPA to issue proposed standards for existing power plants by June 2014 as one of the key components of his climate action plan.

The EPA is simultaneously also working on new source performance standards for future power plants under Section 111 of the Clean Air Act. The agency's proposal, which triggers the existing power plant regulation, would require new coal-fired facilities to meet a performance standard of 1,100 pounds of carbon dioxide per megawatt-hour through the installation of carbon capture and sequestration systems.

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