Supreme Court justices differ on Clean Air Act’s application to greenhouse gases

Source: Tiffany Stecker, E&E reporter • Posted: Wednesday, February 26, 2014

Despite the fact that lawyers were given a narrow question to answer, yesterday’s oral arguments to the Supreme Court touched on all aspects of the ongoing challenge to U.S. EPA’s authority to regulate greenhouse gas emissions through construction permits for large-emitting facilities.It also included a reference to bubblegum, a nod to a tobacco industry case and questions about EPA’s upcoming standards for new and existing power plants.In October, the Supreme Court agreed to hear arguments on whether EPA “permissibly determined” that its vehicle efficiency standards triggered the requirement to regulate stationary sources through the Clean Air Act’s Prevention of Significant Deterioration (PSD) program, which requires large facilities to install modern pollution controls. The court did not question the agency’s authority to regulate greenhouse gases, its ability to tailor permitting thresholds for carbon dioxide or its authority to find that climate change constitutes a threat to public health.

Yet these questions crept into the discussion yesterday, as attorneys for industry groups and states presented a variety of arguments centered on the same theme: The PSD program was intended for pollutants that cause local air quality problems, not global consequences like climate change.

The “significant deterioration” in the PSD program was meant to indicate the worsening of air quality in a specific region, said Peter Keisler, who presented arguments for petitioners the Utility Air Regulatory Group and the American Chemistry Council.

Keisler said that the PSD program was intended by Congress to regulate “area-specific air quality impacts.” The petitioners’ brief narrowed this to “criteria” pollutants, six pollutants defined in the Clean Air Act that cause air quality to worsen. These include lead, nitrogen oxides, sulfur dioxide, carbon monoxide, particulate matter and ozone.

The PSD program requires new and modified facilities to install the “best available control technology,” if they emit a certain volume of pollution. For traditional pollutants, it’s 100 to 250 tons per year. But because carbon dioxide is emitted in such large amounts, EPA changed the threshold for the gas to 75,000 to 100,000 tons per year. This is known as the tailoring rule.

Keisler argued that the Prevention of Significant Deterioration program was limited to “area specific air quality impacts,” an allusion to the “criteria” pollutants that some of the petitioners said were the qualified pollutants to trigger PSD permits.

The American Chemistry Council’s brief offered an interpretation of the statute that was similar to the opinion of Judge Brett Kavanaugh, a District of Columbia circuit judge who dissented from his fellow judges in the lower court’s ruling in favor of EPA. Kavanaugh said that criteria pollutants trigger PSD, but once it had been triggered, EPA could require technology to lower greenhouse gas emissions. This approach would cover 83 percent of greenhouse gas emissions instead of the 86 percent covered under EPA’s current interpretation — a small difference.

This approach is considered a compromise. Keisler stopped short of agreeing completely with Kavanaugh.

“It is very similar, but we get at it in different ways, with slightly different results,” Keisler said.

But Chief Justice John Roberts, while skeptical of rules that would regulate energy usage, seemed open to a compromise position.

The justices, generally divided between political leanings, sought to find a middle ground between maintenance of the court’s Massachusetts v. EPA ruling, which required EPA to find whether greenhouse gases endanger human health, and a need to differentiate between local and global pollutants (Greenwire, Feb. 24).

Clinton appointee Justice Stephen Breyer compared the situation to having a hypothetical statute that states that all bubblegum must be thrown out after a month and then asking about the bubblegum that had been stored in a display case.

“We read an exemption where it makes no sense,” he said, meaning that EPA had deference to make sense of a situation that would not have crossed the minds of members of Congress in 1977, the year the PSD program was integrated into the Clean Air Act.

A ‘quintessential ambiguity’?

But conservative Justice Antonin Scalia, who dissented in Massachusetts v. EPA, differed in his scope.

“It would seem, of course, that you would have to adopt the interpretation that doesn’t include display windows,” he said, adding that “it is not clearly compatible to bring greenhouse gases into the statute.”

Justice Elena Kagan, one of the more liberal justices, said EPA was able to distinguish between major and minor sources through the tailoring rule, which allowed the agency to regulate.

“That, to me, is the quintessential ambiguity in the statute in which we give deference,” she said.

Justice Ruth Bader Ginsberg agreed that the agency’s decision to readjust the thresholds was not a problem.

Kagan referred to the case Chevron v. Natural Resources Defense Council, which backed agencies’ deference to interpret the law in ambiguous circumstances. It might have been an unclear interpretation beforeMassachusetts v. EPA, said Kagan, but it no longer is.

“This is the apex of Chevron deference,” she said.

Jonathan Mitchell, the solicitor general of Texas, who argued on behalf of state petitioners, said the tailoring rule was too ambiguous for this deference. He countered Kagan’s interpretation of administrative law with another case: Food and Drug Administration v. Brown & Williamson Tobacco Corp. In that 2000 Circuit Court decision, the judges decided that Congress had not intended for FDA to regulate tobacco as a drug, despite the Food, Drug and Cosmetic Act’s grant of authority to FDA to regulate, because of the number of tobacco laws Congress enacted after FDCA.

The Institute for Policy Integrity’s Richard Revesz, who wrote a friend-of-the-court brief for EPA, has said that EPA has long used the interpretation of “all pollutants” in the PSD program to include substances that don’t necessarily leave a local impact. One example is fluorinated gases, chemicals that eat away at the ozone layer and leave the Earth susceptible to harmful ultraviolet radiation pollutants (ClimateWire, Jan. 28).

Donald Verrilli, solicitor general for the Department of Justice, who argued on behalf of EPA, said the PSD program was designed to work with the New Source Performance Standards program, the vehicle through which EPA will cap greenhouse gas emissions from new and existing power plants as part of the president’s Climate Action Plan. New Source Performance Standards set a floor for the PSD’s “best available control technology.”

To divorce the PSD permits for greenhouse gases from the New Source Performance Standards would “require an invalidation of EPA’s 34-year understanding of ‘any air pollutant.'”

Thomas Lorenzen, an attorney with Dorsey & Whitney and a former assistant chief for the Department of Justice’s Environment and Natural Resources Division, expects a compromise opinion from the justices around how and whether to incorporate greenhouse gases in the PSD program.

“Will there be a coalition for the 83 percent?” he said, referring to the 83 percent of facilities that will be covered by Judge Kavanaugh’s interpretation.