• D.C. Circuit Affirms EPA’s Authority to Regulate Greenhouse Gas Emissions
  • July 7, 2012 | Author: Sean M. Sullivan
  • Law Firm: Williams Mullen - Raleigh Office
  • On June 26, 2012, the United States Court of Appeals for the District of Columbia Circuit ruled that the Clean Air Act requires EPA to regulate emissions of greenhouse gases (“GHG”) from both mobile and stationary sources. The unanimous opinion relied heavily on the Supreme Court’s decision in Massachusetts v. EPA to conclude that EPA’s regulation of GHG emissions from mobile sources such as automobiles is appropriate. The Court then found that EPA’s decision to regulate mobile source GHG emissions created a statutory obligation for the agency to regulate GHG emissions from stationary sources as well. Though the outcome regarding EPA’s authority to regulate mobile source GHG emissions is not a surprise, the Industry Petitioners had hoped to convince the Court that Congress never intended the Clean Air Act’s Prevention of Significant Deterioration (“PSD”) construction permit and Title V operating permit programs to apply to emissions of GHGs.

    The Industry Petitioners pointed to the need for EPA to promulgate the “Tailoring Rule,” which alters the statutory applicability thresholds for the PSD and Title V programs for GHG emissions, as evidence that neither program was intended to regulate GHGs in the first place. Without the Tailoring Rule, most new buildings with the potential to emit more than 250 tons per year of carbon dioxide (or its equivalent) - as well as modifications to existing buildings that could cause any increase in GHG emissions - would need a PSD permit. Because of the vast number of small sources that would require PSD permits, EPA promulgated much higher applicability thresholds for GHG emissions. EPA argued the revised thresholds were an administrative necessity and required to prevent “absurd results.” The Industry Petitioners argued that the need to issue thresholds contradicting the plain language of the statute - in order to avoid those administrative challenges and “absurd results” - indicates that GHGs should not be within the ambit of the PSD or Title V programs at all.

    The Industry Petitioners also argued that the structure of the PSD program was geared towards addressing pollutants with local or regional effects, but not those whose effects are global in nature. Among other things, they noted that PSD applies to areas judged to be in attainment with the National Ambient Air Quality Standards and that attainment decisions are typically made on a county-by-county basis. The Court rejected this argument as well.

    Because the Court found that the Clean Air Act compels EPA to regulate stationary source GHG emissions, it refused to consider the Industry Petitioner’s challenge of the Tailoring Rule itself. The Court reasoned that in the absence of the Tailoring Rule, more sources would be subject to Title V and PSD permitting, as would the Industry Petitioners. As such, the Tailoring Rule did not cause the Industry Petitioners any injury-in-fact, and the Court found they lacked standing to seek review of the rule.

    To be sure, the decision represents a significant step forward in addressing climate change in the United States, but the Court’s conclusion that the statute compels EPA to regulate GHG emissions is troubling. At times, the decision points to other Clean Air Act programs where “absurd results” allow EPA to limit the types of pollutants regulated under programs like the visibility protection program. But, the need for the Tailoring Rule to avert similarly “absurd results” for the applicability of PSD and Title V to GHG emissions did not stop the Court from concluding that the statute compels EPA to regulate those emissions. Given that this holding underlies the Court’s refusal to adjudicate the substantive challenges to the Tailoring Rule, the opinion may leave readers unconvinced - so far as stationary sources are concerned.

    Coalition for Responsible Regulation, Inc. v. EPA, No. 09-1322, slip op. (D.C. Cir. June 26, 2012) (per curiam).