On February 25, 2014, The United States Supreme Court heard oral arguments in Utility Air Regulatory Group v. Environmental Protection Agency (EPA). The main issue 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 case stems from Massachusetts v. EPA, a 2007 case in which the Court directed the EPA to determine whether greenhouse gases are pollutants that must be regulated under the federal law known as the Clean Air Act.
In following the Court’s directive the EPA found that greenhouse gases endanger public health and welfare. Subsequent to this finding the EPA issued the “timing” and “tailoring” rules. The rules work together as follows: the regulation of greenhouse gases for automobiles automatically triggers a section of the Clean Air Act, what is known as the prevention of significant deterioration section (PSD). It basically requires the EPA to regulate the emissions of any “major” source of a regulated pollutant. “Major” is defined in the Clean Air Act to regulate any source that emits 100 tons per year of a regulated pollutant. . The problem for the EPA is that amount permitted would subject very, very small sources (a single home, perhaps, certainly apartment buildings and small businesses) to the permitting provisions of the Clean Air Act, something that the legislature may not have intended. Complying with this would be extremely expensive and administratively burdensome.
The lower court found that not only is the EPA legally justified to regulate greenhouse emissions but they are required to do so. Additionally, the lower court found that the EPA’s finding that greenhouse gases endanger public health and welfare was reasonable. The Supreme Court has refused to hear a challenge to this issue and therefore it will remain law.
The Utility Air Regulatory Group and other industry members are challenging that the EPA is legally justified to regulate greenhouse gas emissions from stationary sources under the PSD provisions of the act. The Utility Air Regulatory Group is arguing that the above-mentioned PSD provisions do not apply to greenhouse gas emissions. Their central argument is that the PSD provisions only apply to pollutants that are also regulated under a different provision of the CAA, the National Ambient Air Quality Standards (NAAQS). The NAAQS provisions are what EPA has used to regulate conventional pollutants like ozone, lead and carbon monoxide. The EPA is arguing that the PSD provisions are not limited only to the NAAQS pollutants. Instead, the agency believes that once it has regulated any air pollutant under any other section of the Act it must use the PSD provisions to require states to regulate the same pollutant by requiring permits for new major sources.
The consequences of the decision are very important to the environmental law field. If the Court rules in favor of the Utility Air Regulatory Group it will be a setback to the EPA’s efforts to regulate greenhouse gases as they it will no longer be able to utilize the Clean Air Act as a tool. However, there is no denying that the Clean Air Act is challenging piece of legislation, especially with regard to greenhouse gas emission. Utility Air Regulatory Group v. Environmental Protection Agency