Utility Air Regulatory Group v. EPA

See below.

The D.C. Circuit Court of Appeals issued two orders denying—without comment—a rehearing or rehearing en banc of its judgment remanding but not vacating portions of EPA’s permitting regulations for greenhouse gas emissions from stationary sources. In the petition for rehearing, the petitioners had argued that the D.C. Circuit should have vacated EPA’s regulations requiring sources subject to the Prevention of Significant Deterioration permit program solely due to their emissions of other pollutants to use best available control technology (BACT) to reduce greenhouse gas emissions.

After the D.C. Circuit determined in April 2015 that the Supreme Court’s decision in Utility Air Regulatory Group v. EPA did not require vacating EPA’s permitting regulations for greenhouse gas emissions from stationary sources, petitioners asked for panel rehearing and rehearing en banc. The petitioners contended that the D.C. Circuit should have vacated EPA’s regulations requiring sources subject to the Prevention of Significant Deterioration permit program solely due to their emissions of other pollutants to use best available control technology (BACT) to reduce greenhouse gas emissions. The petitioners argued that the Supreme Court in UARG v. EPA had held that these BACT provisions were defective because, among other reasons, they did not establish a de minimis level of greenhouse gas emissions below which BACT would not be required. It therefore was inappropriate, the petitioners said, for the D.C. Circuit to allow EPA “merely to ‘consider,’ per its own ruminations, whenever it feels so inclined,” the extent to which UARG v. EPA required revisions to the BACT provisions. The petitioners also contended that the D.C. Circuit’s amended judgment was at odds with its own precedent concerning when remand without vacatur is appropriate.

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The United States Supreme Court denied certiorari to the Energy-Intensive Manufacturers Working Group on Greenhouse Gas Regulation, which sought review of the D.C. Circuit’s order governing further proceedings after the Supreme Court’s 2014 decision in Utility Air Regulatory Group v. EPA. In its April 2015 order, the D.C. Circuit did not vacate EPA’s regulations concerning greenhouse gas permitting for stationary sources in their entirety. Instead, the D.C. Circuit ordered EPA to rescind the portions of the regulations that required permits based solely on a source’s greenhouse gas emissions, but left in place regulations that required sources subject to Prevention of Significant Deterioration (PSD) requirements due to other types of emissions (often referred to as “anyway” sources) to use best available control technology to control greenhouse gas emissions.

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The United States Supreme Court ruled that EPA had impermissibly interpreted the Clean Air Act as compelling or permitting a facility’s potential greenhouse gas emissions to trigger Prevention of Significant Deterioration (PSD) and Title V permitting requirements. The Court upheld, however, EPA’s determination that “anyway” sources (facilities subject to PSD permitting due to their conventional pollutant emissions) could be required to employ “best available control technology” (BACT) for greenhouse gases. The majority opinion, written by Justice Scalia, concluded that subjecting sources to the PSD and Title V programs solely based on their greenhouse gas emissions “would place plainly excessive demands on limited governmental resources” and “bring about an enormous and transformative expansion in EPA’s regulatory authority without clear congressional authorization.” The Court rejected EPA’s attempt to fix these problems by “rewriting” statutory emissions thresholds, which the Court said “would deal a severe blow to the Constitution’s separation of powers.” The Court went on to hold, however, that the Clean Air Act’s text clearly supported an interpretation that required BACT for “anyway” sources and that applying BACT to greenhouse gases “is not so disastrously unworkable” and “need not result in such a dramatic expansion of agency authority” as to make the interpretation unreasonable. Justice Breyer wrote an opinion, joined by Justices Ginsburg, Sotomayor, and Kagan, concurring with the BACT portion of the majority opinion but dissenting from the conclusion that EPA could not interpret the PSD and Title V programs to be triggered solely by a source’s greenhouse gas emissions. Justice Breyer said that a more sensible way to avoid the absurdity of sweeping an unworkable number of sources into the permitting programs was to imply an exception to the numeric statutory thresholds, rather than to imply a greenhouse gas exception to the phrase “any air pollutant.” Justice Alito, in an opinion joined by Justice Thomas, concurred with the ruling on the triggers for the permitting programs, but dissented from the BACT holding. Justice Alito found it “curious” that the Court departed from a literal interpretation of “pollutant” in striking down greenhouse gas triggers for PSD and Title V permitting, but embraced literalism in upholding the application of BACT for “anyway” sources.

A sampling of reporting on the oral argument: <a href="http://www.nytimes.com/2014/02/25/us/justices-weigh-conundrum-on-epa-authority.html">New York Times</a>, <a href="http://www.scotusblog.com/2014/02/argument-recap-five-the-number-that-counts/">SCOTUSblog</a>, <a href="http://www.washingtonpost.com/politics/supreme-court-divided-on-whether-epa-has-overreached-on-greenhouse-gas-rules/2014/02/24/78852f6c-9d93-11e3-9ba6-800d1192d08b_story.html">Washington Post</a>, <a href="http://www.latimes.com/business/la-fi-court-greenhouse-20140225,0,6928503.story">Los Angeles Times</a>, <a href="http://bigstory.ap.org/article/climate-case-supreme-court-looks-epas-power">AP</a>.

The U.S. Supreme Court granted certiorari with respect to six petitions.  The Supreme Court’s grant of certiorari is limited to one question: “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.”  Certiorari was denied with respect to other questions raised by petitions challenging the D.C. Circuit’s decision, including issues relating to EPA’s endangerment finding and tailpipe emissions standards.