The Supreme Court is getting involved in climate policy again, this time on the question of how the federal government can regulate greenhouse gas emissions. But what does this mean for the President’s climate agenda?
The big news is that this week the Court let stand the Environmental Protection Agency’s “endangerment finding” that greenhouse gases threaten public health. It also effectively upheld EPA’s carbon pollution standards for vehicles. But it did complicate the Obama administration’s effort to regulate pollutants from stationary sources like refineries and large factories. It did this by “granting cert,” or agreeing to review, the question of “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.”
Nine petitions had challenged the EPA’s ability to regulate greenhouse gases through the Clean Air Act, including whether or not emissions are a danger to public health. The Justices will only hear arguments on just this one question, brought by 6 separate petitions from industry and carbon-intensive states.
But the most recent carbon standards that EPA has worked on — and industry has seriously opposed — are the proposed New Source Performance Standards (NSPS) for coal- and gas-fired power plants, as well as the forthcoming standards for existing plants, due in June 2014. Does the Court’s decision to consider this question mean those regulations are under review?
Reactions have varied.
Some have said this could mean carbon standards on power plants are in trouble. National Journal referred to the upcoming case in a headline as one that “could upend Obama’s climate agenda.” The piece goes on to describe the issue as “whether the EPA properly set up its regulatory scheme for major stationary polluters such as coal-fired power plants and oil refiners.” Nature’s news blog said the Court would review EPA’s “plan to limit greenhouse gas emissions from power plants.” The American Petroleum Institute “welcomed” the decision, with VP and General Counsel Harry Ng adding that the Clean Air Act explicitly covers six specific pollutants, “not greenhouse gases.” E&E; News said it would be a “high-profile case” that would be one of the biggest environmental decisions since Massachusetts vs. EPA. A “decision that goes against the EPA could scramble” power plant regulations, wrote Time magazine’s Brian Walsh.
Yet environmental groups that have been active in the judicial back-and-forth celebrated, making the case that the open question that the Court will decide will not affect major greenhouse gas regulations. David Doniger at the Natural Resources Defense Council said that the Justices’ decision “clears the way for EPA to issue carbon pollution standards for power plants.” Environmental attorney Sean Donahue told the Washington Post that “as a matter of emissions reductions, it’s of quite limited import.” The Environmental Defense Fund said the EPA’s “historic climate protections stand” despite all the appeals.
So what’s really going on — could the Court complicate new and existing rules of coal- and gas-fired power plants? The answer involves some complicated explanations of “standards” and “permits” but it helps to take a step back first.
The EPA under the Bush administration had to be forced by the Supreme Court in 2007, with its 5–4 decision in Massachuetts vs. EPA, to regulate greenhouse gases under the Clean Air Act from mobile sources if greenhouse gases were a danger to public health. In 2009, under the Obama administration, EPA finally issued an endangerment finding that those emissions were indeed a public health threat. Regulations followed, such as the vehicle fuel economy standards, and the beginnings of the regulations on power plant emissions.
The U.S. Court of Appeals for the District of Columbia upheld these rules in 2012. Industry groups challenged the rules earlier this year, and it was an open question what the Supreme Court would do with them.
This week, the Court decided to let the D.C. Court of Appeals’ decision stand on the endangerment finding and setting carbon pollution standards on similar polluters, like cars, power plants, and other big industries. This is big.
The Court is just going to look at whether the right to regulate vehicle emissions also means it can regulate GHGs through the permitting process for stationary sources. What are permits? The Clean Air Act requires a new or modified large industrial source to get a permit saying it’ll use the “best available control technology” to limit pollutants, as well as reporting their emissions and complying with standards. So big polluters, before they start polluting, should try to limit their pollution, and keep the public notified of what they are polluting. That’s what permits are.
Again, standards are separate — they are not up for review. All polluters under the Clean Air Act will have to comply with carbon pollution standards.
What the Court will decide is if carbon pollution counts, along with other pollutants, to make a polluting source “major” and therefore subject to regulation under the Act. Industry claims that carbon shouldn’t be considered the same kind of pollutant, that it shouldn’t count. This refers to something called “triggering,” which dates back to a Clean Air Act-based EPA decision in 1980. The decision essentially said if pollution permits were required for any major pollutant, all pollutant regulations would be triggered for permitting limits under the rest of the Act.
Robert Sussman, former Senior Policy Counsel to the EPA Administrator, told Climate Progress in an email that he didn’t think a decision would affect power plant standards. “The Court agreed to hear a narrow issue relating to the permitting requirements for new and modified plants that emit GHGs,” he said. “The issue the Court will consider is whether industrial facilities with increased GHG emissions must be permitted under these programs where there are no significant emissions of conventional pollutants (NOx, PM etc.) that affect air quality.”
Sussman said that’s a separate issue from power plant carbon regulations. “EPA is using different sections of the Clean Air Act to set GHG performance standards for new and existing power plants, Sussman continued. “Under these sections, such standards are permissible for any facilities that ’cause or contribute significantly to air pollution which may reasonably be anticipated to endanger public health or welfare.’”
The fact that the Court did not choose to review both the endangerment finding and the vehicle rules, “the Court is signaling that its stands by its earlier decision that GHGs are ‘air pollutants’ and sees no reason to reverse EPA’s determination that GHG emissions from vehicles ‘endanger’ pubic health and welfare,” said Sussman.
Vehicles emit fewer greenhouse gases than power plants, so it’s very unlikely that even a negative decision on permitting would affect performance standards on power plants.