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High Court Hears Arguments On EPA’s Ability To Regulate Greenhouse Gases

WASHINGTON, D.C. — (Mealey’s) The U.S. Supreme Court on Feb. 24 heard oral arguments on whether the U.S. Environmental Protection Agency overstepped its bounds by regulating greenhouse gas emissions from stationary sources such as power plants (Utility Air Regulatory Group v. U.S. Environmental Protection Agency, et al., No. 12-1146, American Chemistry Council v. U.S. Environmental Protection Agency, et al., No. 12-1248, Energy-Intensive Manufacturers Working Group on Greenhouse Gas Regulation v. U.S. Environmental Protection Agency, et al., No. 12-1254, Southeastern Legal Foundation v. U.S. Environmental Protection Agency, et al., No. 12-1268, Texas, et al. v. U.S. Environmental Protection Agency, et al., No. 12-1269, Chamber of Commerce v. U.S. Environmental Protection Agency, et al., No. 12-1272, U.S. Sup.). 

(Transcript available.  Document #08-140314-001T.

The high court will determine whether the agency properly found that its regulation of greenhouse gas emissions from new motor vehicles triggered its permitting requirements under the Clean Air Act (CAA) for stationary sources that emit greenhouse gases and whether a panel of the District of Columbia Circuit U.S. Court of Appeals properly upheld the agency’s determination.

Numerous Interpretations 

Peter D. Keisler of the Washington, D.C., office of Sidley Austin, began the proceedings arguing on behalf of the Utility Air Regulatory Group, American Chemistry Council and Energy-Intensive Manufacturers.  Justices Sonia Sotomayor and Elena Kagan quickly pointed out that the industrial groups were presenting at least four interpretations of the term “air pollutant” that would prevent the EPA from regulating greenhouse gases under the CAA. 

“So if your side can’t even come to one interpretation, why shouldn’t we defer to the Agency?” Justice Sotomayor asked Keisler.

 Justice Ruth Bader Ginsburg then asked Keisler about the groups’ varying positions in their briefs before the Supreme Court.

“I recognize, Your Honor, that having six opening briefs isn’t the most effective or most helpful way to present our position,” Keisler explained.  “So let me express on behalf of all of the private Petitioners, there are two arguments. 

“Our principal argument, and the one I would like to focus on the most, is that greenhouse gases are not included within the PSD [Prevention of Significant Deterioration] program at all.  They can’t trigger its applicability and they wouldn’t be subject to the Best Available Control Technology determination.” 

Consistent Questioning 

Keisler was consistently questioned by Justices Sotomayor and Justice Kagan during his arguments, and Justices Stephen G. Breyer, Antonin Scalia and Samuel A. Alito Jr. also raised concerns about the groups’ positions as to why the EPA was wrong.

 Justices Sotomayor and Kagan maintained a similar line of questioning when Texas Solicitor General Jonathan F. Mitchell began his arguments on behalf of states challenging the EPA’s decision.

“EPA thinks it can fix this problem by imposing an atextual  agency-created regime that applies only to greenhouse gases,” Mitchell said.  “The proper response, however, is for EPA to conclude that Congress never delegated regulatory authority over greenhouse gases in the PSD and Title V programs [of the CAA].  Congress does not establish round holes for square pegs.”

 Continued Regulation 

The justices also questioned Donald B. Verrilli Jr. of the U.S. Department of Justice, who argued on behalf of the EPA, about how the agency’s regulation of greenhouse gases would vary with regard to major and minor emitters. 

Justice Anthony M. Kennedy then bluntly asked Verrilli, “[I]f you’re denied the authority you seek here, there can be no significant regulation of greenhouse gases under the Act?” 

“No,” Verilli answered. 


Keisler represents the American Chemistry Council.  F. William Brownell of Hunton & Williams in Washington is counsel for Utility Air Regulatory Group.  John J. McMackin Jr. of Williams & Jensen in Washington is counsel for Energy-Intensive Manufacturers Working Group on Greenhouse Gas Regulation.  Shannon Lee Goessling of Southeastern Legal Foundation in Marietta, Ga., represents the group.  Mitchell, of the Solicitor General of Texas’ office in Austin, Texas, is counsel for the state.  Robert R. Gasaway of Kirkland & Ellis in Washington represents the U.S. Chamber of Commerce. 

Verrilli of the U.S. Department of Justice in Washington is counsel for the EPA.

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