U.S. Supreme Court Holds that Large New and Rebuilt Industrial Emitters Must Use Best Available Controls for Climate Pollution When Discharging Other Major Pollutants

June 23, 2014


Vickie Patton, 303-447-7215, vpatton@edf.org
Sharyn Stein, 202-572-3396, sstein@edf.org

The U.S. Supreme Court ruled 7-to-2 today, in Utility Air Regulatory Group v. EPA (No. 12-1146, et al), that the U.S. Environmental Protection Agency (EPA) permissibly read the Clean Air Act to require installation of the best available control technology for large new or rebuilt industrial pollution sources of greenhouse gases that are sources of other major air pollutants. 

This is now the third decision in which the Court has affirmed the application of the Clean Air Act to climate pollution. 

A 5-to-4 majority of the court also held that EPA must narrow its permit program to avoid applying the permitting program to many smaller sources that EPA itself had concluded would pose serious practical problems and yield relatively small pollution control benefits.

“EPA’s foundational authority under the Clean Air Act to protect Americans’ health from the clear and present danger of climate pollution is rock solid,” said Vickie Patton, General Counsel for Environmental Defense Fund. “Recognizing EPA’s authority to protect public health from climate pollution, the high Court today clarified that the best pollution controls for greenhouse gases apply to new and rebuilt industrial sources that are large emitters of other major air pollutants.”

Environmental Defense Fund is a party to the case.  

More Information about Clean Air Act Permit Requirements for Large Industrial Emitters

Today’s decision stemmed from years of litigation in which polluters challenged almost every aspect of EPA’s first generation climate protections including: EPA’s science-based finding that six greenhouse gases endanger human health and the well-being of current and future generations; EPA’s limits on the climate pollution from passenger vehicles (“clean car” standards); and the requirement that industrial emitters obtain permits when constructed or rebuilt to deploy modern cost-effective solutions to reduce their climate pollution.

In October 2013, the Supreme Court declined to hear the vast majority of those challenges, but did agree to review one narrow question on whether EPA’s regulation of greenhouse gas emissions from new motor vehicles triggered permitting requirements under the Clean Air Act for large industrial sources of greenhouse gases.

The requirement for large industrial sources to obtain greenhouse gas construction permits became operative on January 2, 2011 when climate pollution became subject to regulation under the Clean Cars standards.  

Since 2011, 166 permits have been issued, 122 by the states and 44 by EPA, and about 50 permits are being processed by EPA regions (see http://www.epa.gov/oar/caaac/pdfs/awood_caaac_042014.pdf, page 26).

The Supreme Court Has Recognized EPA’s Authority to Establish Carbon Pollution Standards for Power Plants

EPA proposed carbon pollution standards for existing coal plants on June 2, 2014, and the Court recognized EPA’s authority to regulate carbon pollution under section 111 again today.

The Supreme Court has long recognized EPA’s clear authority to regulate carbon pollution from new and existing coal-fired power plants under this – separate – new source performance standards program.  

Indeed, during the February 24, 2014 oral argument in this very case, industry attorney Peter Keisler stated, in response to questioning from Justice Ruth Bader Ginsburg, that EPA has clear authority to address climate pollution from power plants and industrial sources under the new source performance standards (section 111): 

“I think most critically, Your Honor, it includes the new source performance standards program of Section 111 that this Court discussed in Connecticut v. AEP. And this is a very important point, because this case is not about whether EPA can regulate greenhouse gases from stationary sources. This Court held that it could under this program in Section 11 [sic].”

(See Supreme Court transcript page 22)

The Supreme Court has twice affirmed EPA’s authority to address climate pollution under our nation’s clean air laws – in Massachusetts v. EPA (2007) and American Electric Power v. Connecticut (2011).  In the 2011 AEP case, Keisler had a similar colloquy with Justice Ginsburg in which he recognized that there could not be “a more specific example of Congress having addressed the problem” of greenhouse gases. Consistent with Keisler’s acknowledgement, Justice Ginsburg authored the 2011 opinion of the Court in AEP, holding that the Clean Air Act “speaks directly” to emissions of carbon dioxide from power plants. 

More Information about Today’s Case

You can read all the legal briefs filed in the UARG case that was decided today, and get more information about the case itself, on EDF’s website.

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