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Supreme Court rules on GHG emissions Says that the EPA can only regulate these emissions from stationary sources that already require air permits for other reasons By Alan Bailey Petroleum News
On June 23 the U.S. Supreme Court issued a ruling which, at first sight, appeared to vindicate those who argue that the Environmental Protection Agency does not have the legal authority to regulate the emission of greenhouse gases from stationary industrial emissions sources. But, by also opening an avenue for the type of regulation that EPA is seeking, the ruling contains a sting in the tail for the multiple organizations that had appealed the validity of EPA’s regulatory efforts to limit the discharge of carbon dioxide from industrial facilities.
Regulations appealed Following an appeal against EPA regulation of greenhouse gas emissions from car exhaust pipes, in 2007 the court had declared that carbon dioxide and other greenhouse gases are pollutants under the terms of the Clean Air Act. But when EPA then proceeded to introduce regulations setting limits to greenhouse gas discharges from stationary sources, several states and industry groups appealed the agency’s actions, saying that the agency does not have the authority to impose this type of regulation, and that there is inadequate evidence that greenhouse gases are harmful.
After the U.S. Court of Appeals for the District of Columbia rejected the appeals in 2012, the plaintiffs elevated the case to the Supreme Court. In November 2013 the Supreme Court agreed to take the case, but limited its review to the question of whether the regulation of greenhouse gases from motor vehicles triggered the need for similar regulations for stationary sources.
No authority under the act In a majority decision delivered by Justice Scalia the Supreme Court has now said that the Clean Air Act “neither compels nor permits” EPA to require an air permit solely on the basis of greenhouse gas emissions. Although the act provides scope for interpretation of what constitutes a regulated air pollutant, some emissions, such as steam, from industrial processes are not harmful, Scalia wrote. And the regulation of greenhouse gases which are emitted from industrial sources in “vast quantities” would render the regulatory programs conducted under the Clean Air Act unworkable.
The regulatory programs “are designed to apply to, and cannot rationally be extended beyond, a relative handful of large sources capable of shouldering heavy substantive and procedural burdens,” Scalia wrote.
Recognizing this problem, EPA had introduced a special rule, setting relatively high emissions thresholds at which greenhouse gas regulation would kick in.
But the Clean Air Act does not give EPA the statutory authority to implement such a rule, Scalia wrote.
“We conclude that EPA’s rewriting of the statutory thresholds was impermissible and therefore could not validate the agency’s interpretation of the triggering provisions,” Scalia wrote. “An agency has no power to ‘tailor’ legislation to bureaucratic policy goals by rewriting unambiguous statutory terms.”
Can add GHG to permits Having apparently rejected EPA’s moves to regulate greenhouse gas emissions, the court proceeded to rule that the agency can require an emissions-generating plant to implement the best available technology for controlling greenhouse gases, if that plant already requires a permit for the emission of other pollutants. And, since air emissions permits are normally only required for large emissions sources, this aspect of the court ruling appears to open the door to EPA’s intent to regulate greenhouse gases from large industrial facilities, albeit by a different regulatory route than what the agency had planned.
Dissenting opinions Justice Breyer, supported by Justices Ginsburg, Sotomayor and Kagan, issued a partially dissenting opinion, saying that EPA does have the legal right to set a high emissions threshold for the regulation of greenhouses gases. And Justice Alito, supported by Justice Thomas, issued another dissenting opinion saying that EPA should not have regulatory authority over greenhouse gas emissions from a stationary source, regardless of whether the source requires an air emissions permit for other reason.
“BACT (best available control technology) analysis, like the rest of the Clean Air Act, was developed for use in regulating the emission of conventional pollutants and is simply not suited for use with respect to greenhouse gases,” Alito wrote.
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