Supreme Court Upholds Greenhouse Gas Emmission Limits for Large Industries, but Implementation Questions Remain

by Burr & Forman
Contact

On Monday, June 22, the U.S. Supreme Court issued a much anticipated decision in Utility Air Regulatory Group v. Environmental Protection Agency (slip opinion) where it  affirmed EPA’s authority to impose limits for greenhouse gas (GHG) emissions by major emissions sources that are otherwise required to have a Clean Air Act permit for conventional pollutants.  At the same time, the Court rejected the Agency’s assertion that it has the authority to impose GHG emission limits on facilities independent of any other obligation those facilities may have to obtain permits.  Thus, EPA (and the States) may impose GHG limits in permits required by rules intended to Prevent Significant Deterioration (PSD) of air quality, but the Agency cannot require permits based solely on GHG emissions or for facilities that do not have other emissions above threshold levels.

Several years ago, the Supreme Court provided a method for regulating greenhouse gases  under the Clean Air Act (CAA). Massachusetts v. Environmental Protection Agency. (2007) (slip opinion). That decision provided that the Agency can classify greenhouse gases as air pollutants and regulate them if it made a determination that they constitute a danger to human health or the environment.  EPA subsequently made such an endangerment finding and then proceeded with the rulemaking challenged by the Utility Air Regulatory Group and others.  The basic issue in the recent case centered on the fact that the CAA contains very specific thresholds that trigger permitting obligations for air pollutants, those being either one hundred (100) tons per year or two hundred fifty (250) tons per year depending on the type of industry.  Since greenhouse gases are emitted in volumes much larger than the criteria pollutants regulated under the CAA (commonly: carbon monoxide, sulfur dioxide, oxides of nitrogen, ozone, lead and particulate matter), the use of such comparatively low statutory numbers would impose regulatory obligations on millions of sources that are not currently required to have permits.  Thus, EPA sought to impose much higher permit trigger thresholds for GHG in a process it called tailoring.  The Court rejected the tailoring concept outright.  However, it held that the Agency could accomplish essentially the same purpose by limiting the regulation of greenhouse gases to facilities that would be required to obtain a permit under the PSD program anyway.  Thus, EPA effectively ended up with a comparable regulatory field, but with the Court using a much different method.

A number of questions remain with respect to this approach, and EPA will have to provide some guidance or instruction about its interpretation of the decision and its authorities going forward.  Perhaps the most significant of these questions is the thresholds at which greenhouse gases will be regulated under the PSD program.  Currently, there is disagreement about whether the thresholds established in EPA’s disapproved tailoring rule remain effective for application to PSD permits, or whether EPA must repromulgate those or new thresholds.  While EPA is expected to provide guidance on this in the near future, the contention surrounding greenhouse gas regulation would indicate that this aspect of the requirements is also likely to face significant challenges.

 

DISCLAIMER: Because of the generality of this update, the information provided herein may not be applicable in all situations and should not be acted upon without specific legal advice based on particular situations.

© Burr & Forman | Attorney Advertising

Written by:

Burr & Forman
Contact
more
less

Burr & Forman on:

Readers' Choice 2017
Reporters on Deadline

"My best business intelligence, in one easy email…"

Your first step to building a free, personalized, morning email brief covering pertinent authors and topics on JD Supra:
Sign up using*

Already signed up? Log in here

*By using the service, you signify your acceptance of JD Supra's Privacy Policy.
Privacy Policy (Updated: October 8, 2015):
hide

JD Supra provides users with access to its legal industry publishing services (the "Service") through its website (the "Website") as well as through other sources. Our policies with regard to data collection and use of personal information of users of the Service, regardless of the manner in which users access the Service, and visitors to the Website are set forth in this statement ("Policy"). By using the Service, you signify your acceptance of this Policy.

Information Collection and Use by JD Supra

JD Supra collects users' names, companies, titles, e-mail address and industry. JD Supra also tracks the pages that users visit, logs IP addresses and aggregates non-personally identifiable user data and browser type. This data is gathered using cookies and other technologies.

The information and data collected is used to authenticate users and to send notifications relating to the Service, including email alerts to which users have subscribed; to manage the Service and Website, to improve the Service and to customize the user's experience. This information is also provided to the authors of the content to give them insight into their readership and help them to improve their content, so that it is most useful for our users.

JD Supra does not sell, rent or otherwise provide your details to third parties, other than to the authors of the content on JD Supra.

If you prefer not to enable cookies, you may change your browser settings to disable cookies; however, please note that rejecting cookies while visiting the Website may result in certain parts of the Website not operating correctly or as efficiently as if cookies were allowed.

Email Choice/Opt-out

Users who opt in to receive emails may choose to no longer receive e-mail updates and newsletters by selecting the "opt-out of future email" option in the email they receive from JD Supra or in their JD Supra account management screen.

Security

JD Supra takes reasonable precautions to insure that user information is kept private. We restrict access to user information to those individuals who reasonably need access to perform their job functions, such as our third party email service, customer service personnel and technical staff. However, please note that no method of transmitting or storing data is completely secure and we cannot guarantee the security of user information. Unauthorized entry or use, hardware or software failure, and other factors may compromise the security of user information at any time.

If you have reason to believe that your interaction with us is no longer secure, you must immediately notify us of the problem by contacting us at info@jdsupra.com. In the unlikely event that we believe that the security of your user information in our possession or control may have been compromised, we may seek to notify you of that development and, if so, will endeavor to do so as promptly as practicable under the circumstances.

Sharing and Disclosure of Information JD Supra Collects

Except as otherwise described in this privacy statement, JD Supra will not disclose personal information to any third party unless we believe that disclosure is necessary to: (1) comply with applicable laws; (2) respond to governmental inquiries or requests; (3) comply with valid legal process; (4) protect the rights, privacy, safety or property of JD Supra, users of the Service, Website visitors or the public; (5) permit us to pursue available remedies or limit the damages that we may sustain; and (6) enforce our Terms & Conditions of Use.

In the event there is a change in the corporate structure of JD Supra such as, but not limited to, merger, consolidation, sale, liquidation or transfer of substantial assets, JD Supra may, in its sole discretion, transfer, sell or assign information collected on and through the Service to one or more affiliated or unaffiliated third parties.

Links to Other Websites

This Website and the Service may contain links to other websites. The operator of such other websites may collect information about you, including through cookies or other technologies. If you are using the Service through the Website and link to another site, you will leave the Website and this Policy will not apply to your use of and activity on those other sites. We encourage you to read the legal notices posted on those sites, including their privacy policies. We shall have no responsibility or liability for your visitation to, and the data collection and use practices of, such other sites. This Policy applies solely to the information collected in connection with your use of this Website and does not apply to any practices conducted offline or in connection with any other websites.

Changes in Our Privacy Policy

We reserve the right to change this Policy at any time. Please refer to the date at the top of this page to determine when this Policy was last revised. Any changes to our privacy policy will become effective upon posting of the revised policy on the Website. By continuing to use the Service or Website following such changes, you will be deemed to have agreed to such changes. If you do not agree with the terms of this Policy, as it may be amended from time to time, in whole or part, please do not continue using the Service or the Website.

Contacting JD Supra

If you have any questions about this privacy statement, the practices of this site, your dealings with this Web site, or if you would like to change any of the information you have provided to us, please contact us at: info@jdsupra.com.

- hide
*With LinkedIn, you don't need to create a separate login to manage your free JD Supra account, and we can make suggestions based on your needs and interests. We will not post anything on LinkedIn in your name. Or, sign up using your email address.
Feedback? Tell us what you think of the new jdsupra.com!