Utility Group, Virginia Appeal Decisions Upholding CO2 Regulation

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Freight train in front of a chemical plant in Chicago.  Clean Air Act Section 169(1) requires stationary source with emissions greater than 250 tons per year to obtain prevention of significant deterioration permits. Close

Freight train in front of a chemical plant in Chicago.  Clean Air Act Section... Read More

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Photographer: Getty Images

Freight train in front of a chemical plant in Chicago.  Clean Air Act Section 169(1) requires stationary source with emissions greater than 250 tons per year to obtain prevention of significant deterioration permits.

Bloomberg BNA -- Virginia and the Pacific Legal Foundation asked the U.S. Supreme Court to overturn an appellate court decision upholding the Environmental Protection Agency's 2009 finding that greenhouse gases should be regulated under the Clean Air Act.

Additionally, the Utility Air Regulatory Group, a power company trade group, asked the Supreme Court to overturn a U.S. Court of Appeals for the District of Columbia Circuit decision upholding EPA's greenhouse gas permitting program for large stationary sources of emissions.

The petitions for certiorari were filed with the Supreme Court March 20. The Supreme Court granted many of the parties in the lawsuits an extension until April 19 to file their requests for certiorari.

Several states and industry groups had challenged EPA's December 2009 finding that greenhouse gas emissions pose a danger to the public and should be regulated; its May 2010 emissions standards for vehicles; its June 2010 tailoring rule, which limited greenhouse gas permitting to the largest stationary sources; and the agency's historical application of its prevention of significant deterioration permitting program.

Under the Clean Air Act, carbon dioxide "is unique" because it is ubiquitous in the atmosphere.

The D.C. Circuit unanimously upheld EPA's greenhouse gas regulations in June 2012. The court denied requests to rehear the lawsuits in December 2012.

Endangerment Finding Challenged

Both Virginia and the Pacific Legal Foundation said EPA made procedural errors when it issued,

and later denied, reconsideration of its finding that greenhouse gases endanger the public and the environment and should be regulated under the Clean Air Act.

Virginia, which had petitioned EPA to reconsider its endangerment finding, said EPA compiled additional information that was not part of its proposed finding or subject to any public comment period when it denied requests for reconsideration. That additional information also should have been subject to a notice and comment period, Virginia said in its petition.

“A revision of the statement of basis and purpose is, therefore, a revision requiring notice and comment,“ Virginia said. “The endangerment finding itself is nothing more than an overarching statement of basis and purpose intended to support all subsequent rulemaking on the subject.”

Virginia also asked the Supreme Court to review EPA's reliance on data from the Intergovernmental Panel on Climate Change when it issued its endangerment finding. The state said EPA's Inspector General later faulted the agency in a September 2011 report for failing to conduct an adequate peer review of that data before it issued its finding.

“Federal administrative agencies generally may not delegate their authority to outside parties,” Virginia said.

The Pacific Legal Foundation argued in its petition that EPA should have sent the endangerment finding to the Science Advisory Board for review before it was promulgated.

“Our argument has been EPA has missed a step,” Pacific Legal Foundation attorney Theodore Hadzi-Antich told BNA March 25. “They have a nondiscretionary mandatory duty to submit all proposed regulations … for scientific peer review to the SAB before they can be promulgated. Here in the endangerment finding they missed a step.”

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The Pacific Legal Foundation in its petition asked the Supreme Court to determine “whether an administrative agency may ignore a statutory mandate to obtain independent peer review of a scientific finding that serves as the trigger for a cascade of federal regulations that will have substantial impacts on the Nation for years to come.”

The Utility Air Regulatory Group petitioned the Supreme Court to determine whether EPA was compelled to regulate greenhouse gas emissions from large industrial sources as a consequence of Massachusetts v. EPA.

In that 2007 decision, the Supreme Court held that greenhouse gases are air pollutants for the purposes of the Clean Air Act. As a result, EPA issued it endangerment finding and its greenhouse gas emissions limits for passenger vehicles.

EPA said regulating vehicle emissions triggered a mandatory Clean Air Act duty to regulate stationary sources through prevention of significant deterioration and Title V permitting as well.Carbon dioxide “is unique -- fundamentally different from the other substances that have been regulated” under the Clean Air Act because it is ubiquitous in the atmosphere, and EPA violated explicit congressional intent when it modified the statutory emissions thresholds that trigger permitting with its tailoring rule, the Utility Air Regulatory Group said in its petition.

The tailoring rule limits prevention of significant deterioration and Title V greenhouse gas permitting to new sources that emit more than 100,000 tons per year of carbon dioxide-equivalent and modified sources that increase their emissions by more than 75,000 tons per year. Clean Air Act Section 169(1) requires stationary sources with emissions greater than 250 tons per year to obtain prevention of significant deterioration permits. Sources with emissions greater than 100 tons per year are required to obtain Title V operating permits.

“Because millions of small facilities throughout the nation emit GHGs at rates greater than 100 tpy, EPA's interpretation that [Massachusetts v. EPA] compels regulation of GHGs under these programs would cause a radical expansion of Title I PSD and Title V jurisdiction,” the Utility Air Regulatory Group said. “Programs that Congress enacted to apply to only a comparative handful of large industrial facilities would be transformed, overnight, into programs encompassing innumerable small sources.”

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