The June 23 U.S. Supreme Court ruling on Environmental Protection Agency (EPA) regulation of greenhouse gas emissions has no “direct impact on EPA’s recent proposed rules setting emission standards for new and existing power plants under section 111 of the Clean Air Act,” according to attorneys for Van Ness Feldman.
“However, the reasoning in this case could support an argument for limiting the extent to which EPA may claim authority to regulate GHG emissions through new paradigms and nontraditional measures for reducing GHG emissions under section 111 of the Clean Air Act,” according to a June 24 analysis.
The firm’s evaluation of the high court ruling was done by partners Kyle Danish and Stephen Fortis along with assistance from associates Avi Zevin and Ilan Gutherz.
The Supreme Court’s decision, a review of six separate challenges consolidated under the heading Utility Air Regulatory Group v. EPA, overturns certain aspects of the 2012 U.S. Court of Appeals for the District of Columbia (“D.C. Circuit”) case Coalition for Responsible Regulation v. EPA, 684 F.3d 102. But the court did not take up other aspects of the D.C. Circuit opinion, including the upholding of EPA’s determination that GHGs endanger public health and welfare (the Endangerment Finding), or its promulgation of GHG emission standards for new light duty motor vehicles (the Tailpipe Rule).
The majority opinion is unlikely to have a significant impact on most sources for which EPA requires greenhouse gas (GHG) emission limitations. As the majority opinion acknowledges, 83% of GHGs are emitted from “anyway sources”—facilities that are already subject to prevention of significant deterioration (PSD) and Title V requirements because of their emissions of criteria pollutants.
“Most sources with significant GHG emissions—including power plants, refineries and other large industrial sources—emit sufficient quantities of conventional pollutants to trigger PSD and Title V. Such sources, when newly constructed or modified, will continue to be required to install BACT [best available control technology] for GHGs,” the attorneys found.
The Van Ness Feldman limited impact conclusion does come with a couple of caveats, however. Justice Antonin Scalia’s opinion suggested that EPA’s GHG authority might be limited in scope. “[W]hen an agency claims to discover in a long-extant statute an unheralded power to regulate a significant portion of the American economy, we typically greet its announcement with a measure of skepticism,” Scalia said.
Justice Stephen Breyer countered by saying that Congress sought to give EPA the ability to deal with “changing circumstances and scientific developments.”
Van Ness Feldman also pointed to another portion of the Scalia opinion that might complicate EPA’s effort to rely too heavily upon energy efficiency measures in determining its “best system of emission reduction” (BSER) for CO2.
The Van Ness Feldman firm has over 100 professionals in Washington D.C. and Seattle. The firm represents clients in energy, environment, land use, real estate, and government relations matters.