Thursday, October 24, 2013

US Supreme Court to Hear Greenhouse Gas Rule Challenge

The U.S. Supreme Court has agreed to hear an appeal of Texas v. EPA, in which the D.C. Circuit Court approved EPA’s greenhouse gas (GHG) regulations.  Numerous industrial organizations and states had challenged the D.C. Court’s upholding of the Endangerment Finding, in which EPA concluded that GHGs from mobile sources represent a danger to U.S. health and welfare, and the Timing and Tailoring Rules, in which EPA described how it would regulate GHGs for stationary sources under the Clean Air Act.  The two primary objections raised by industry were that EPA’s conclusion that GHGs are a danger (and therefore a pollutant to be regulated) is  unsupported scientifically, and that EPA’s conclusion that GHGs are a pollutant under the mobile source program should not  automatically result in GHG regulations for  stationary sources under the New Source Review program.

The Supreme  Court has decided to  consider only the very narrow, but very important, question of “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.” EPA has taken the position that once a pollutant is regulated under the Clean Air Act’s mobile source rule, it is regulated under other portions of the  Act as well, including New Source Review.  The Supreme Court will now tell us whether that is correct, or whether EPA’s GHG regulations are limited to mobile sources, at least until EPA would initiate rulemaking to impose GHG limits on stationary sources.

EPA recently set GHG New Source Performance Standards for electric generators that would essentially prevent construction of new coal-fired generating plants, and is presently preparing to set GHG standards for existing sources as well.   The Supreme Court decision will determine whether EPA has authority to adopt those rules.



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