EDS | EDS Cases in the Supreme Court
In Utility Air Regulatory Group v. EPA, 134 S. Ct. 2427 (2014), the Supreme Court resolved challenges to EPA’s greenhouse gas regulations under the Prevention of Significant Deterioration (“PSD”) and Title V programs of the Clean Air Act (“CAA”), affirming the applicability of the PSD program’s substantive requirements to stationary sources that emit the vast majority of greenhouse gases while rejecting such application to smaller sources that are not already subject to the PSD program. Various industry groups and 17 states challenged all aspects of EPA’s regulation of greenhouse gas emissions under the PSD and Title V permitting programs, including EPA’s determinations that: greenhouse gas emissions from stationary sources endanger public health and welfare; this endangerment finding requires the regulation of such emissions from vehicles under Title II of the CAA; and regulation under Title II automatically triggers the application of PSD and Title V permitting requirements for all stationary sources that emit over 100 tons per year (“tpy”) of greenhouse gases, which EPA “tailored” to 100,000 tpy in order to make the regulation of such sources manageable. The D.C. Circuit upheld all of EPA’s determinations or found that petitioners lacked standing to challenge them. The Supreme Court granted certiorari only on the last issue.
Writing for a 5-4 majority, Justice Scalia, relying on familiar cases that require an agency to interpret statutory provisions in the context of the full Act or program at issue, found that EPA was neither compelled nor could it exercise its discretion to interpret the phrase “any air pollutant” in the PSD applicability provision to cover greenhouse gas emissions, when EPA conceded that Congress never intended PSD and Title V to cover the millions of sources that would be subject to regulation at the 100 tpy threshold, and where EPA had previously limited the application of the phrase “any air pollutant” in various related contexts, including limiting the reach of PSD only to any regulated air pollutant. In a portion of the opinion supported by seven Justices, the Court found that EPA’s application of the substantive provisions of the PSD program (the imposition of best available control technologies or “BACT”) for “each pollutant subject to regulation” under the CAA was a reasonable application of the Act, and thus sources already subject to PSD by virtue of emissions of other pollutants above the statutory threshold are subject to PSD’s substantive requirements for their greenhouse gas emissions. As Justice Scalia explained, “EPA is getting almost everything it wanted in this case . . . . It sought to regulate sources it said were responsible for 86% of all the greenhouse gases emitted from stationary source nationwide. Under our holdings, EPA will be able to regulate sources responsible for 83% of those emissions.”