Supreme Court Affirms In Part, Reverses In Part Clean Air Act Ruling

Supreme Court Affirms In Part, Reverses In Part Clean Air Act Ruling

WASHINGTON, D.C. — (Mealey's) The U.S. Supreme Court today reversed in part and affirmed in part a District of Columbia Circuit U.S. Court of Appeals ruling as to whether the U.S. Environmental Protection Agency could require companies emitting greenhouse gases (GHGs) to obtain permits for their emissions under the Clean Air Act (CAA) (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.; See March 2014, Page 4). [ subscribers may access Supreme Court briefs and the opinion for this case]

Justice Antonin Scalia wrote the two-part opinion for the majority and held that the CAA does not compel or permit the agency to require companies to obtain a prevention of significant deterioration (PSD) permit or Title V permit solely based on their emissions of GHGs.  The majority explained that Title V permit requirements for GHG emissions would be inconsistent with the CAA’s structure and design.  Moreover, it said that allowing the EPA to require such permits would “bring about an enormous and transformative expansion in EPA’s regulatory authority without clear congressional authorization.”

In the second part of the ruling, Justice Scalia wrote that the EPA could require companies owning stationary sources emitting conventional pollutants to obtain permits to comply with the best available control technology standards for GHGs.

The Utility Air Regulatory Group, American Chemistry Council, Energy-Intensive Manufacturers Working Group on Greenhouse Gas Regulation, Southeastern Legal Foundation, U.S. Chamber of Commerce and a number of states each filed petitions in the D.C. Circuit, challenging the EPA’s authority to require owners and operators of stationary sources that emit GHGs to obtain CAA permits based on the agency’s finding regarding GHG emissions from new motor vehicles.  The appeals court affirmed the EPA’s “endangerment determination” for GHGs [enhanced version available to subscribers].  The petitioners appealed to the U.S. Supreme Court, and their cases were consolidated.

Exceeded Authority

The majority concluded that the EPA had exceeded its authority by attempting to require permits solely based on a source’s emissions of GHGs.

“To sum up:  We hold that EPA exceeded its statutory authority when it interpreted the Clean Air Act to require PSD and Title V permitting for stationary sources based on their greenhouse-gas emissions,” it said.  “Specifically, the Agency may not treat greenhouse gases as a pollutant for purposes of defining a ‘major emitting facility’ (or a ‘modification’ thereof) in the PSD context or a ‘major source’ in the Title V context.  To the extent its regulations purport to do so, they are invalid. EPA may, however, continue to treat greenhouse gases as a ‘pollutant subject to regulation under this chapter’ for purposes of requiring BACT for ‘anyway’ sources.”

Chief Justice John G. Roberts Jr. and Justice Anthony M. Kennedy joined in full in the ruling.  Justices Clarence Thomas, Samuel Anthony Alito Jr., Ruth Bader Ginsburg, Stephen G. Breyer, Sonia Sotomayor and Elena Kagan joined in part.

Separate Opinions

Justice Breyer wrote in a separate opinion that he concurred in part and dissented in part with the majority ruling.

“The court’s decision to read greenhouse gases out of the PSD program drains the Act of its flexibility and chips away at our decision in Massachusetts [Massachusetts v. EPA, 549 U.S. 497 (2007)],” [enhanced version available to subscribers], Justice Breyer wrote.  “What sense does it make to read the Act as generally granting the EPA the authority to regulate greenhouse gas emissions and then to read it as denying that power with respect to the programs for large stationary sources at issue here?  It is anomalous to read the Act to require the EPA to regulate air pollutants that pose previously unforeseen threats to human health and welfare where ‘250 tons per year’ is a sensible regulatory line but not where, by chemical or regulatory happenstance, a higher line must be drawn.  And it is more anomalous to read an unwritten exception into the more important phase of the statutory definition (‘any air pollutant’) when a similar unwritten exception to less important language (the particular number used by the statute) will do just as well.  The implicit exception preferred by the Court produces all of these anomalies, while the source-related exception I propose crates none of them.”

Justices Ginsburg, Sotomayor and Kagan joined in Justice Breyers’ opinion.

Justice Alito also wrote a separate opinion.

“I do not agree, however, with the Court’s conclusion that what it terms ‘anyway sources,’ i.e. sources that are subject to PSD and Title V permitting as the result of the emission of conventional pollutants, must install ‘best available control technology’ (BACT) for greenhouse gases,” Justice Alito wrote.  “As is the case with the PSD and Title V thresholds, trying to fit greenhouse gases into the BACT analysis badly distorts the scheme that Congress adopted.”

Justice Thomas joined in Justice Alito’s opinion.


F. William Brownell of Hunton & Williams in Washington is counsel for Utility Air Regulatory Group.  Peter D. Keisler of Sidley Austin in Washington represents the American Chemistry Council.  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.  John F. 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.

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

[Editor's Note:  Lexis subscribers may download the document here, (Opinion available. Document #08-140711-014Z.). The document(s) are also available at or by calling the Customer Support Department at 1-800-833-9844.]

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