Utility Air Regulatory Group v. EPA

Date: June 23rd, 2014

Topic: Climate Change Mitigation

Type: Defense of Federal Standards

Jurisdiction: California, Connecticut, Delaware, Illinois, Iowa, Maine, Maryland, Massachusetts, Minnesota, New Hampshire, New Mexico, New York, North Carolina, Oregon, Rhode Island, Vermont, Washington

After the landmark holding of Massachusetts v. EPA that greenhouse gases (GHGs) are “air pollutants” within the ambit of the Clean Air Act, EPA issued several rules respecting the control of GHG emissions:

  1. (i) an endangerment finding for GHG emissions from motor vehicles;
  2. (ii) a rule establishing GHG emission standards for motor vehicles (the “tailpipe rule”);
  3. (iii) a rule specifying that, when the tailpipe rule became effective, major stationary sources of GHG emissions would be subject to the Prevention of Significant Deterioration (PSD) and Title V permitting requirements, including the requirement to install the “best available control technology” for GHG emissions; and
  4. (iv) a rule limiting the scope of major stationary sources that are subject to the PSD and Title V permitting requirements (the “tailoring rule”). Multiple lawsuits challenging these rules were consolidated in Coalition for Responsible Regulation v. EPA. A group of 17 states intervened on behalf of the EPA to defend the validity of those rules.

The D.C. Circuit Court of Appeals dismissed all of the challenges to EPA’s GHG regulations. The Utility Air Regulatory Group then filed a petition for writ of certiorari to the Supreme Court seeking to reverse the D.C. Circuit’s upholding of EPA’s GHG permitting program for large stationary sources (Utility Air Regulatory Group v. EPA). The 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.

Citation: Utility Air Regulatory Group v. EPA, 134 S.Ct. 2427 (2014)  / Coalition for Responsible Regulation, Inc., et al. v. EPA, 684 F.3d 102 (D.C. Cir. 2012)

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