Supreme Court rejects most challenges to EPA authority

Oct 18, 2013

—Court will review a specific question regarding new power plants

A recent dust-up over the Environmental Protection Agency’s (EPA’s) authority has been settled. The decision was nuanced, however, and sets the stage for a larger battle later.

The Supreme Court refused to review a number of cases regarding the EPA’s authority to regulate greenhouse gases last week. The court did, however, accept to review a single question posed by plaintiffs of several of the cases.

According to the court’s Oct. 15 records, the sole question it will consider is “Whether 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 reference to regulating vehicle emissions of greenhouse gases refers to a 2007 decision by the Supreme Court which ultimately directed the EPA to do so.

The collective question was drawn from six different cases revolving around the EPA’s intention to require extensive permitting and impose strict emission limits on new “stationary sources” of greenhouse gases. Recently, WLJ covered this in terms of new coal- and gas-fired power plants; plaintiffs in the accepted cases assert it could apply to many other things.

“The EPA is seeking to regulate U.S. manufacturing in a way that Congress never planned and never intended,” said Harry Ng, American Petroleum Institute (API) vice president and general counsel. The API also pointed out in its response to the decision that certain other “stationary sources” of greenhouse gases, such as oil refineries and other industrial buildings, would be affected.

The reaction to the court’s move has been mixed with both sides of the issue calling it a victory. On the one side, plaintiffs heralded the acceptance of even one of the issues raised in the cases as validation of their concerns.

“The Clean Air Act clearly only requires pre-construction permits for six specific emissions that impact national air quality—not greenhouse gases,” continued Ng.

“That kind of overreach can have enormous implications on U.S. competitiveness and the prices that consumers pay for fuel and manufactured goods. We’re pleased that the court has agreed to review our petition—alongside several others—and we look forward to presenting our case.”

On the other side, environmental groups have hailed the dismissal of so many cases and other issues brought to the Supreme Court as evidence of the nonissue of the EPA’s regulation on greenhouse gases.

“We’re happy to see the Supreme Court turn back the brunt of industry’s broadside attack on the law,” said Kevin Bundy, senior attorney with the Center for Biological Diversity. “We hope the court will confirm EPA’s authority, under the plain terms of the Clean Air Act, to require state-of-the-art pollution controls from new power plants and factories.”

The court refused to review any other questions raised by the dismissed cases. Among the more noteworthy questioned included EPA’s assertion that carbon emissions endanger public health and/ or the planet which underlies most of its activities and requests to review its 2007 decision regarding regulating motor vehicle emissions.

The court will hear arguments regarding the EPA’s permitting and emissions regulations for “stationary sources” of greenhouse gases for one hour on the issue sometime next year. — Kerry Halladay, WLJ Editor