Revisiting the Clean Air Act: Utility Air Regulatory Group in Context

Utility Air Regulatory Group v. Environmental Protection Agency is the latest challenge to EPA authority under the Clean Air Act (CAA) to come before the Supreme Court.[1] Congress established the CAA in 1970 to address air quality concerns, which at the time centered on the dense smog found in the nation’s major cities and grew with subsequent statutory revisions to include acid rain and ozone depletion. In 2007, the Court said in Massachusetts v. EPA that the CAA authorizes the EPA to regulate greenhouse gas (GHG) emissions from new motor vehicles if the agency forms a “judgment” that such GHG emissions contribute to climate change.[2]

Following Massachusetts v. EPA, EPA began to promulgate regulations for GHG emissions including the 2010 Tailoring Rule, which governs permitting for GHG emissions under Title I of the CAA, including the Prevention of Significant Deterioration (PSD) program, and Title V. EPA also issued the “Tailpipe Rule,” which sets emissions standards for cars and small trucks, and the “Timing Rule,” which requires major stationary sources of GHGs to obtain construction and operating permits. The “Tailoring Rule” requires only the largest stationary sources to obtain permits.[3] Petitioners in the instant case charge that EPA’s adjustment of the statute’s numerical standards via the Tailoring Rule amounts to an unprecedented attempt to “rewrite” the statutory text of the CAA.[4]

The question before the Court in Utility Air Regulatory Group is whether the EPA permissibly determined that its regulation of greenhouse gas emissions from new motor vehicles triggered permitting requirements under the Clean Air Act for stationary sources that emit greenhouse gases. The narrow scope of review means that the holdings in both Massachusetts v. EPA and AEP v. Connecticut (which held that the CAA and the authorized EPA action displace any federal common law right to seek abatement of CO2 emissions) will likely survive.[5] The EPA will likely retain its role in regulating greenhouse gas emissions, at least to some extent. What is unclear, however, is whether the Court will attempt to reign in the agency whose regulatory reach has greatly expanded following Massachusetts v. EPA and AEP v. Connecticut, and how Congress will respond.

Notably, the court has declined to hear an appeal of EPA’s “endangerment finding,” which was upheld by the D.C. Circuit below in Coalition for Responsible Regulation v. EPA.[6] This means that in addition to maintaining a role for EPA in regulating GHG emissions, the Court is likely to acknowledge, as it did in Massachusetts v. EPA, the significance of the problem posed by climate change and the contribution of GHG emissions to that problem.[7] At oral arguments, even Chief Justice Roberts noted to counsel for industry petitioners, “Counsel, you began that discussion by saying putting Massachusetts v. EPA to one side. But I was in the dissent in that case, but we still can’t do that.”[8]

Following the Court’s blessing of EPA regulation of GHG emissions from new vehicles in Massachusetts v. EPA, the Agency argues that it permissibly set about regulating GHG emissions from stationary sources under the PSD program. As written in the statute, the PSD provision requires permits for certain listed stationary sources emitting 100 tons per year of “any air pollutant” or else any stationary source emitting more than 250 tons per year of “any air pollutant.”[9] Taken literally, this would impose the permitting requirement on “the corner deli or…a high school building.”[10] So EPA promulgated the Tailoring Rule, imposing the GHG permitting requirement on only the largest GHG-emitting sources: those exceeding 75,000 or 100,000 tons per year of carbon dioxide. The EPA argues that its interpretation aligns with Congressional intent that “any air pollutant” be regulated and therefore, the agency’s interpretation should be afforded deference.[11] Petitioners, however, contend that such deference is limited to a reasonable interpretation, and that EPA’s interpretation is not reasonable where such interpretation requires EPA to “rewrite” provisions of the statute.[12]

Some commentators have suggested the case may have minor import, given the Court’s evident unwillingness to overturn Massachusetts v. EPA and AEP.[13] But the debate over whether the EPA is permitted to amend statutory thresholds speaks to a larger debate over the expanding role of the agency in confronting climate change. Even if the Court sides with the EPA, Congress retains the power to revise the mandate to regulate GHG emissions through new legislation. Indeed, following the recent cold snaps, Republican legislators have proposed various bills in response to the rising cost of heating. On March 6, the House passed H.R. 3826, the “Electricity Security and Affordability Act.” The bill would prohibit the EPA from regulating GHG emissions under the CAA for new fossil fuel-fired power plants unless separate standards are established for coal and natural gas plants, and would restrict the agency’s ability to establish emission standards for new coal-fired power plants.

With the Court split along ideological lines: Justices Breyer, Ginsburg, Kagan and Sotomayor appearing inclined to defer to the EPA’s interpretation; and Chief Justice Roberts and Justices Scalia and Alito appearing skeptical of EPA authority to revise clear, numerical statutory thresholds, commentators are focused, unsurprisingly, on Justice Kennedy’s behavior at oral arguments.[14] While both Chief Justice Roberts and Justice Kennedy expressed the view that the Court is bound by Massachusetts v. EPA, Justice Kennedy stated to Solicitor General Verrilli that he “couldn’t find a single precedent that strongly supports” the Government’s position.[15] So despite Justice Kennedy’s unwillingness to overturn Massachusetts v. EPA v. EPA, it’s not certain the EPA can count on his vote.

 

Daniella Roseman is a General Member on MJEAL. She can be reached at  droseman@umich.edu. 

 


The views and opinions expressed in this blog are those of the authors only and do not reflect the official policy or position of the Michigan Journal of Environmental and Administrative Law or the University of Michigan.

[1] Oral Argument, Utility Air Regulatory Group v. Environmental Protection Agency, No. 12-1146 (2014), available at http://www.oyez.org/cases/2010-2019/2013/2013_12_1146; Transcript of Oral Argument, Utility Air Regulatory Group v. Environmental Protection Agency, (2014) (No. 12-1146), available at: http://www.supremecourt.gov/oral_arguments/argument_transcripts/12-1146_nk5h.pdf.

[2] Massachusetts v. E.P.A., 549 U.S. 497 (2007); see also Endangerment and Cause or Contribute Findings for Greenhouse Gases Under Section 202(a) of the Clean Air Act, 74 FR 66496-01 (finding that six GHGs endanger public health and welfare).

[3] Rose Nimkiins Petoskey and Katherine Hinderlie, Utility Air Regulatory Group v. EPA, American Chemistry Council v. EPA, Energy-Intensive Manufacturers v. EPA, Southeastern Legal Foundation v. EPA, Texas v. EPA, Chamber of Comm. v. EPA, 12-1146, 12-1248, 12-1254, 12-1268, 12-1269, 12-1272 (Consolidated), LII Supreme Court Bulletin, available at: http://www.law.cornell.edu/supct/cert/12-1146.

[4] Transcript of Oral Argument, supra note 1, at 5–6.

[5] See, e.g. Tony Mauro, Justices Divided Over Greenhouse Gas Regulations, New York Law Journal, (Feb. 24, 2014), http://www.newyorklawjournal.com/expert-analysis/id=1202644317874/Justices%20Divided%20Over%20Greenhouse%20Gas%20Regulations?mcode=1202615518654&curindex=8; Adam Liptak, For the Supreme Court, a Case Poses a Puzzle on the E.P.A.’s Authority, The New York Times, (Feb. 24, 2014), http://www.nytimes.com/2014/02/25/us/justices-weigh-conundrum-on-epa-authority.html?_r=0; Justin Pidot, Utility Air Regulatory Group v. EPA: Reflections on the Argument, (Feb. 28, 2014), https://www.acslaw.org/acsblog/utility-air-regulatory-group-v-epa-reflections-on-the-argument.

[6] Coal. for Responsible Regulation, Inc. v. E.P.A., 684 F.3d 102 (D.C. Cir. 2012) cert. granted in part, 134 S. Ct. 418, 187 L. Ed. 2d 278 (U.S. 2013) and cert. denied, 134 S. Ct. 418, 187 L. Ed. 2d 279 (U.S. 2013) and cert. denied, 134 S. Ct. 418, 187 L. Ed. 2d 279 (U.S. 2013) and cert. granted in part, 134 S. Ct. 418, 187 L. Ed. 2d 278 (U.S. 2013) and cert. granted in part, 134 S. Ct. 419, 187 L. Ed. 2d 278 (U.S. 2013) and cert. granted in part, 134 S. Ct. 419, 187 L. Ed. 2d 278 (U.S. 2013) and cert. granted in part, 134 S. Ct. 468, 187 L. Ed. 2d 278 (U.S. 2013) and cert. granted in part, 134 S. Ct. 468, 187 L. Ed. 2d 278 (U.S. 2013) and cert. denied, 134 S. Ct. 468, 187 L. Ed. 2d 279 (U.S. 2013) (holding: 1) EPA’s determination that anthropogenically induced climate change threatened both public health and public welfare was rational; 2) EPA’s endangerment finding was not arbitrary and capricious; 3) EPA was required to extend permitting program to major emitters; and 4) states and regulated industries lacked standing to challenge rules delaying and phasing in programs regulating greenhouse gas emissions).

[7] See, e.g., Pidot supra note 5.

[8] Transcript of Oral Argument, supra note 1, at 18–19.

[9] Clean Air Act, 42 U.S.C. § 7479 (2012).

[10] Transcript of Oral Argument, supra note 1, at 41.

[11] See id, at 55.

[12] See id, at 8.

[13] See, e.g., Lyle Denniston, Argument preview: Curbing greenhouse gases, SCOTUSblog (Feb. 22, 2014, 12:03 AM), http://www.scotusblog.com/2014/02/argument-preview-curbing-greenhouse-gases/.

[14] See, e.g., Pidot supra note 5; Liptak, supra note 5.

[15] Transcript of Oral Argument, supra note 1, at 72.

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