On September 30, the U.S. Supreme Court will consider whether to grant petitions to review the U.S. Court of Appeals for the D.C. Circuit’s decision upholding greenhouse gas (GHG) regulations issued by the U.S. Environmental Protection Agency (EPA) under the Clean Air Act. In part, the regulations were in response to the Supreme Court’s decision in Massachusetts v. EPA, 549 U.S. 497 (2007), in which the Court held that GHGs are an air pollutant as defined by section 302(g) of the Clean Air Act, 42 U.S.C. § 7602(g), and that EPA has the authority under section 202(a)(1) of the Act, 42 U.S.C. § 7521(a)(1), to issue motor vehicle emission standards for GHGs if it forms the judgment that such emissions contribute to climate change. 549 U.S. at 528-29.
In 2009, EPA issued its Endangerment Finding that motor vehicle emissions of GHGs cause or contribute to air pollution which may reasonably be anticipated to endanger public health and welfare through climate change. 74 Fed. Reg. 66,496 (Dec. 15, 2009). Several months later, EPA issued its Tailpipe Rule establishing GHG emission standards for automobiles and light-duty trucks. 75 Fed. Reg. 25, 324 (May 7, 2010). Although the Tailpipe Rule addresses only mobile sources of GHGs, it has significant consequences for stationary sources. Under the Prevention of Significant Deterioration (PSD) program, in areas where the air quality meets or exceeds national ambient air quality standards (NAAQS) for one or more of six criteria pollutants, new or modified sources that emit 250 tons per year (or 100 tons per year in some cases) of any air pollutant must obtain a construction permit. Under Title V, sources that emit 100 tons per year of any air pollutant must obtain an operating permit. Under a longstanding interpretation given to the Act by EPA, these permit programs apply to any air pollutant regulated under the Act. Therefore, once GHGs became regulated for mobile sources, under EPA’s view, as a matter of law they also became subject to the PSD and Title V permit programs. Because of the ubiquitous nature of carbon dioxide, the predominant GHG, this would expand the two permit programs from approximately 15,000 permittees to more than six million permittees, including such small sources as schools, apartment buildings, and churches. EPA recognized that this would be an absurd result never intended by Congress. It issued two rules designed to phase in the regulation of GHGs at stationary sources: the Timing Rule, which deferred regulation until January 2, 2011 (when the Tailpipe Rule went into effect), 75 Fed. Reg. 17,004 (Apr. 2, 2010), and the Tailoring Rule, which provides that initially the regulation applies only to sources that emit 100,000 tons per year (75,000 tons for some sources), anticipating that EPA will apply it to smaller and smaller sources over time, 75 Fed. Reg. 31,514 (June 3, 2010).
EPA’s GHG regulations were challenged by numerous states, industry groups and advocacy organizations before the D.C. Circuit, which upheld the Endangerment Finding and Tailpipe Rule, and dismissed the challenges to the Tailoring Rule and Timing Rule for lack of standing. Coalition for Responsible Regulation, Inc. v. EPA, 684 F.3d 102 (2012). Nine petitions for certiorari, an unusually large number, have been filed with the Supreme Court. The issues as framed by the various petitioners are as follows:
Utility Air Regulation Group v. Environmental Protection Agency (Dkt. No. 12-1146)
Whether Massachusetts compelled EPA to include GHGs in the PSD and Title V programs when inclusion of GHGs would (i) transform the size and scope of these programs into something that EPA found would be “unrecognizable to … Congress,” and (ii) expand the PSD program to cover a substance that does not deteriorate the quality of the air that people breathe.
Whether dismissal of the petitions to review EPA’s GHG permit-program rules was inconsistent with this Court’s standing jurisprudence where the panel premised its holding that standing was absent on its merits holding that GHGs are regulated “pursuant to automatic operation of the CAA.”
Virginia v. Environmental Protection Agency (Dkt. No. 12-1152)
Did Virginia and other Petitioners below demonstrate that there was evidence of central relevance to the EPA’s Endangerment Finding not available during the comment period such that the Administrator was obligated to convene a proceeding for reconsideration with procedural rights of notice and comment?
Did the EPA correctly apply the standard for demonstrating central relevance?
Did the EPA err when it found the objections material enough to require resort to extensive new evidence outside of the record while denying the rights of notice and comment on that evidence?
Did the EPA err initially and on Petition for Reconsideration by delegating its Statutory Authority to outside entities?
Pacific Legal Foundation v. Environmental Protection Agency (Dkt. No. 12-1153)
Must the Endangerment Finding be set aside because EPA violated the congressional mandate to submit the proposed Finding to the Science Advisory Board for peer review, as required by 42 U.S.C. § 4365(c)(1)?
American Chemistry Council v. Environmental Protection Agency (Dkt. No. 12-1248)
Whether EPA properly interpreted Part C of the Clean Air Act, requiring a pre-construction permit for a “major emitting facility … in any area to which this part applies,” 42 U.S.C. § 7475(a)(1), to apply to facilities emitting “any regulated air pollutant,” when EPA’s interpretation concededly produces absurd results, requiring (in the agency’s view) that it rewrite separate statutory thresholds, and when an alternative construction – applying the provision only to sources of NAAQS pollutants subject to Part C – would avoid those results and would not require rewriting the statute.
Coalition for Responsible Regulation v. Environmental Protection Agency (Dkt. No. 12-1253)
Whether the Clean Air Act and this Court’s decision in Massachusetts v. EPA prohibit the Environmental Protection Agency from considering whether regulations addressing greenhouse gases under Section 202 of the Act would meaningfully mitigate the risks identified as the basis for their adoption.
Energy-Intensive Manufacturers Working Group on Greenhouse Gas Regulation v. Environmental Protection Agency (Dkt. No. 12-1254)
Whether the Court of Appeals erred in determining that regulating stationary-source greenhouse-gas emissions under the Clean Air Act’s Prevention of Significant Deterioration program, and an associated program known as “Title V,” is statutorily required as a matter of a Chevron “step-one” legislative command.
Whether, in determining that the Clean Air Act unambiguously requires application of the PSD program to greenhouse gases, the Court of Appeals and the EPA ignored required elements of statutory construction in cases of this type by failing to examine whether the various statutory components of that program where contradicted, nullified, or otherwise contravened by application to greenhouse gases, and, further, without considering whether alternative mechanisms exist for regulating stationary-source greenhouse-gas emissions under the Act that better serve the statute’s dual concerns with the economy and the environment.
Whether a claimant may be barred from asserting a claim that applying the PSD program to greenhouse gases is not authorized by the Act because the claimant, or other large emitters of conventional pollutants, did not assert that claim at the time EPA promulgated decades-old regulations that involved conventional pollutants only, when, first, the claim at issue is uniquely and entirely limited to the application of the statute to greenhouse gases, and, second, the Agency, in any event, itself has modified the regulations to reflect a unique greenhouse-gas-specific definition of the key statutory term.
Southeastern Legal Foundation v. Environmental Protection Agency (Dkt. No. 12-1268)
May EPA exert authority over GHG emissions under the Clean Air Act where (1) EPA acknowledged that its interpretation of the Act is fundamentally inconsistent with both the express terms of the Act and the manifest intent of Congress and would lead to results that are “absurd” and “impossible” to administer, (2) there exist reasonable alternative interpretations of the Act that do not create such conflicts and absurd results, and (3) EPA’s action was based on an irrational claim of scientific certainty in the face of ample contradictory and equivocal evidence in the rulemaking record?
Having adopted an “absurd” and “impossible” interpretation of the Act, may EPA then rewrite the statutory requirements of the CAA to substitute its own preferred “tailored” regulatory regime for stationary GHG emissions in order to avoid the absurd and impossible results of its own making?
Is EPA’s administrative “tailoring” of the Act to avoid the absurd results of its own interpretation beyond judicial review on the ground that no party has standing to challenge the assumed administrative power to relax statutory requirements?
Texas v. Environmental Protection Agency (Dkt. No. 12-1269)
(a) Whether EPA’s Tailoring Rule violates the Act by replacing Congress’s unambiguous numerical permitting thresholds with criteria of EPA’s own choosing. (b) Whether the D.C. Circuit improperly ducked this question on Article III standing grounds.
Whether Congress authorized EPA to regulate greenhouse-gas emissions from stationary sources, given that the Act imposes permitting thresholds that are absurdly low if applied to carbon dioxide.
Whether Massachusetts v. EPA should be reconsidered or overruled in light of the absurd permitting burdens that follow from treating carbon dioxide as an air pollutant under the Act.
Chamber of Commerce of the United States v. Environmental Protection Agency (Dkt. No. 12-1272)
Whether, once an agency has identified absurd results produced by its construction of a complex statutory scheme as a whole, the agency may deem the identified absurdity irrelevant to the construction of some individual provisions within the scheme and a justification for rewriting others.
Whether EPA’s determination that greenhouse gases “may reasonably be anticipated to endanger public health or welfare” and otherwise are regulable under section 202(a)(1) of the Clean Air Act, 42 U.S.C. § 7521(a)(1), was “not in accordance with law” or was “arbitrary, capricious, [and] an abuse of discretion,” § 7607(d)(9)(A).
Whether EPA incorrectly determined that all “air pollutants” regulated by the agency under the Clean Air Act’s motor vehicle emissions provision, 42 U.S.C. § 7421(a)(1), must also be regulated under the Act’s Prevention of Significant Deterioration of Air Quality and Title V programs when emitted from stationary sources.
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