Supreme Court trims EPA greenhouse gas permitting

The Supreme Court today threw out part of U.S. EPA's air permitting program for heat-trapping gases.

In a 5-4 vote, the court's conservative wing held that EPA could not require stationary sources to obtain air pollution permits and install pollution controls because they emit only a specified amount of greenhouse gases.

The court also ruled that EPA unlawfully interpreted the Clean Air Act when it revised the numeric tonnage thresholds for greenhouse gases that force factories, power plants and other industrial facilities to obtain a permit.

But the ruling's impact on EPA's larger regulatory regime is likely limited. In a separate part of the decision, EPA won the votes of seven justices who held the agency could require facilities to limit greenhouse gas emissions if they already qualified for the permit program because of emissions of conventional air pollutants.

Conservative Justice Antonin Scalia, writing for the court, noted EPA's broad interpretation would account for 86 percent of the country's greenhouse gases. But limiting the permit requirement to the "anyway" sources would cover 83 percent, a difference of 3 percentage points.


Nevertheless, Scalia chastised EPA's interpretation of greenhouse gases as the type of "air pollutant" that can trigger permitting on its own.

"It takes some cheek for EPA to insist that it cannot possibly give 'air pollutant' a reasonable, context-appropriate meaning" for the permitting program, Scalia wrote, "when it has been doing precisely that for decades."

The high court's ruling seems unlikely to affect President Obama's proposal to establish greenhouse gas standards for existing power plants (Greenwire, June 2).

EPA is exercising its authority under a different section of the Clean Air Act to promulgate those rules. While they are likely to be challenged in court, they weren't at issue in the Supreme Court case (see related story).

A dozen states and industry groups including the U.S. Chamber of Commerce and American Chemistry Council challenged EPA's inclusion of greenhouse gases in its permitting program requiring stationary sources to limit emissions by installing pollution control technologies.

After EPA concluded in 2009 that greenhouse gases pose a risk to human health, the agency finalized limits for motor vehicle emissions of the pollutant.

A year later, the agency said those standards triggered regulation of the gases from other sources. EPA then added greenhouse gases to its Prevention of Significant Deterioration, or PSD, permitting program.

The regime requires facilities to obtain permits before construction or modification, which mandate they use the "best available" control technology, or BACT, to control emissions of harmful pollutants.

While Scalia wrote that greenhouse gases alone can't trigger the PSD permit requirement, he saw no problem with BACT requirements for greenhouse gases if a facility already needs a PSD permit for other pollutants.

"Even if the text were not clear, applying BACT to greenhouse gases is not so disastrously unworkable, and need not result in such a dramatic expansion of agency authority, as to convince us that EPA's interpretation is unreasonable," Scalia said.

Separately, the court struck down EPA's "tailoring" rule.

At issue was EPA's decision to revise the tonnage thresholds that forced a source to obtain a PSD permit. The Clean Air Act numerical threshold was far too low for greenhouse gases and would have required sources like apartment buildings and hospitals to obtain permits.

EPA said that would expand the program too broadly, so it increased the thresholds substantially for greenhouse gases. The agency also wanted to continue to revise those thresholds in the future.

The court held today that such an interpretation "is not permissible."

Scalia cast the regulation as a power grab and criticized its desire to revisit the thresholds periodically.

"The statute does not compel EPA's interpretation, it would be patently unreasonable -- not to say outrageous -- for EPA to insist on seizing expansive power that it admits the statute is not designed to grant," Scalia wrote.

"We are not willing to stand on the dock and wave goodbye as EPA embarks on this multiyear voyage of discovery."

EPA calls ruling a 'win'

EPA applauded the ruling, pointing to its limited scope.

"Today is a good day for all supporters of clean air and public health and those concerned with creating a better environment for future generations," the agency said in a statement. "Today, the Supreme Court largely upheld EPA's approach to focusing Clean Air Act permits on only the largest stationary sources of greenhouse gases such as power plants, refineries, and other types of industrial facilities. The Supreme Court's decision is a win for our efforts to reduce carbon pollution."

However, Amanda Leiter, an environmental law professor at the American University Washington College of Law, said the ruling does undercut EPA's efforts, particularly with regard to its desire to revise the statutory tonnage thresholds going forward.

"I don't think it's unfair to say, EPA lost the power it wanted to wield," Leiter said.

Justice Stephen Breyer, writing for the court's liberal wing in dissent, criticized Scalia's opinion and said it limits the Supreme Court's ruling in 2007's Massachusetts v. EPA. That case forced EPA to regulate greenhouse gases as an air pollutant under the Clean Air Act.

"The court's decision to read greenhouse gases out of the PSD program drains the Act of its flexibility and chips away at our decision in Massachusetts," Breyer wrote.

Two of the court's conservative jurists -- Samuel Alito and Clarence Thomas -- would have gone even further.

Alito wrote that Massachusetts "was wrongly decided at the time, and these cases further expose the flaws with that decision."

Alito and Thomas would not have applied the greenhouse gas requirements to the sources that qualify for the permit program because of other pollutants.

Click here for the opinion.

Twitter: @GreenwireJeremy | Email:

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