Supreme Court to hear greenhouse gas case

The Supreme Court on Tuesday agreed to review whether the Environmental Protection Agency has the power to require greenhouse gas permits for big, stationary pollution sources such as power plants, factories and refineries.

The justices said in an order that they would review “whether EPA permissibly determined that its regulation of greenhouse gas emissions from new motor vehicles triggered permitting requirements under the Clean Air Act for stationary sources that emit greenhouse gases.”

Oral arguments in the case are expected to take place in early 2014.

An array of industry and conservative groups and states had urged the high court to conduct a much more sweeping review. They had asked the court to review every piece of a sweeping appeals court decision in 2012 that upheld the EPA’s first wave of climate change regulations and the agency's power to impose future rules.

But industry groups nonetheless cheered the Supreme Court’s announcement.


“The EPA is seeking to regulate U.S. manufacturing in a way that Congress never planned and never intended,” said Harry Ng, the American Petroleum Institute’s vice president and general counsel. “The Clean Air Act clearly only requires pre-construction permits for six specific emissions that impact national air quality — not greenhouse gases.”

Parties including the U.S. Chamber of Commerce, the state of Texas and the American Chemistry Council, which represents chemical manufacturers, urged the Supreme Court to review the 2012 decision that upheld EPA's climate programs.

The Supreme Court is reviewing an EPA permitting program for large new and modified pollution sources that began taking effect in 2011.

Under the program, regulators, on a case-by-case basis, require large new and modified industrial plants to limit greenhouse gas emissions.

Vickie Patton, an attorney with the Environmental Defense Fund, noted the limited nature of the case now before the Supreme Court.

“Today the Supreme Court granted review of one narrow question whether certain Clean Air Act permitting requirements have been triggered for large stationary sources,” she said in a statement.

“We look forward to presenting our case to the high Court to show that EPA’s long-standing permitting requirement that the nation’s largest industrial emitters do their fair share in cutting carbon pollution by deploying cost effective technologies when they are constructing or rebuilding is manifestly anchored in law and science,” she said.

But the agreement to hear the case arrives as the EPA is crafting separate rules that would set first-time carbon emissions limits for new and, later, existing power plants.

Scott Segal, an attorney and lobbyist with Bracewell & Giuliani, who represents power companies and refiners, said the case could foreshadow how the high court would look at the planned power plant rules, which are certain to face legal challenges.

“I think it is a bit of a sea change,” he said of the court’s Tuesday decision to review the EPA permitting. “It demonstrates a lot of what industry has been saying for a long time, which is that the EPA plays fast and loose with its legal authority in the carbon area in the absence of legislative authority.”

“Today it is the permitting program, but there are plenty of challenges lined up” for the forthcoming carbon standards for power plants, Segal said.

In practice, the EPA permitting program that the high court will review has required facilities to improve their energy efficiency, which companies have been doing anyway, said William Becker, executive director of the National Association of Clean Air Agencies.

“It hasn’t had the kind of impacts that some of the industry lobbyists, 2 1/2 ago, said it would,” said Becker, whose group represents state and local regulators that carry out Clean Air Act programs with the EPA. “It hasn’t resulted in the paralysis of permitting that many industries thought.”

He said roughly 100 facilities have been affected per year thus far.

But industry groups allege the EPA greenhouse gas regulation is onerous.

“Manufacturers are pleased with the Supreme Court’s decision to review the EPA’s greenhouse gas regulations from stationary sources — one of the most costly, complex and harmful regulatory issues facing manufacturers and threatening our global competitiveness,” said Jay Timmons, president of the National Association of Manufacturers.

Environmentalists on Tuesday downplayed the prospect that the Supreme Court case could jeopardize the EPA’s broader power to regulate heat-trapping emissions.

“By deciding to review only one narrow permitting question from an expansive D.C. Circuit opinion upholding EPA's power over greenhouse gas emissions, the court leaves intact EPA’s ability to regulate climate-altering pollution from both stationary and mobile sources,” said Professor Richard Revesz of the Institute for Policy Integrity at New York University’s law school.

— This post was modified at 10:56 a.m. and 12:30 p.m.