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Challenge to EPA’s Proposed Power Plant CO2 Limits Unlikely to Derail Climate Change Action

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Challenges to the EPA's proposed CO2 limits for power plants unlikely to derail climate action

Setting up what’s going to be the first in a series of challenges to federal agency efforts to follow through on President Obama’s National Climate Change Action Plan, the Supreme Court on Tuesday agreed to hear arguments challenging the Environmental Protection Agency’s (EPA) authority under the Clean Air Act to impose limits on carbon dioxide (CO2) emissions from stationary sources – i.e. coal and natural gas-fired power plants.

The Justices accepted six of nine total petitions challenging the EPA’s authority, but agreed only to consider a single question for all six: “Whether the 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.”

Rejecting three petitions and winnowing down the other six to this one question suggests the central issue for the justices is one of general agency administrative law – framing the boundaries for federal agency discretion in issuing new regulations – as opposed to being a substantive challenge as to whether or not CO2 can be considered an air pollutant or, as such, whether or not the EPA has the authority to regulate CO2 and greenhouse gas emissions from new and existing power plants under the Clean Air Act.

Regulating power plant carbon emissions

The single question the Supreme Court has agreed to hear reaches back to its precedent-setting April, 2007 ruling in EPA vs. Massachusetts in which 12 states, several local governments and NGOs sued the EPA for failing to regulate emissions of CO2 and three other greenhouse gases from the transportation sector – i.e. for new motor vehicles.

In a 5-4 ruling, the Supreme Court ruled in favor of the petitioners in EPA vs. Massachusetts, deciding that human CO2 and greenhouse gas emissions “has led to ‘actual’ and ‘imminent’ harm to the state of Massachusetts, mainly in the form of rising sea levels along the state’s coast,” adding that “the harms associated with climate change are serious and well recognized.” Significantly, the Supreme Court ruled that CO2 does fit within the Clean Air Act’s broad definition of an air pollutant.

After years of delay and back-and-forth legal actions, the EPA – following through on the launch of President Obama’s National Climate Change Action Plan and a June 25 Presidential Memorandum – on September 20 this year proposed new Clean Air Act regulations limiting carbon dioxide (CO2) emissions from new power plants.

Commenting upon the release of the agency’s new carbon emission limits, EPA Administrator Gina McCarthy stated,

“Climate change is one of the most significant public health challenges of our time. By taking commonsense action to limit carbon pollution from new power plants, we can slow the effects of climate change and fulfill our obligation to ensure a safe and healthy environment for our children. These standards will also spark the innovation we need to build the next generation of power plants, helping grow a more sustainable clean energy economy.”

Framing boundaries for federal agencies

Nine parties filed petitions challenging the EPA’s proposed CO2 emissions limits for new power plants. The Supreme Court rejected three and accepted petitions filed by the U.S. Chamber of Commerce, the American Chemistry Council, the Energy-Intensive Manufacturers Working Group, the Southeastern Legal Foundation, the State of Texas, and the Utility Air Regulatory Group.

Significantly, all six petitions were consolidated, with the Justices agreeing to hear arguments on a single question over the course of one hour: whether the EPA overstepped the bounds of the Clean Air Act by extending the Supreme Court’s ruling in Massachusetts vs. EPA to include CO2 and greenhouse gas emissions from power plants.

Their decision isn’t likely to derail EPA’s efforts to regulate CO2 and greenhouse gas emissions or other agencies’ efforts to follow through on Pres. Obama’s National Climate Change Action Plan, Brendan Collins, Partner in Ballard, Spahr’s Environment and Natural Resources Group told GWIR.

“I can’t foresee a way, even if EPA loses on this one question, that the court’s decision would affect EPAs ability to regulate greenhouse gases under the PSD (Prevention and Significant Deterioration).”

PSD is an EPA Clean Air Act National Enforcement Initiative that aims to prevent “significant deterioration in air quality and non-attainment with air quality standards” for new and modified sources of emissions.

“The court could well decide that EPA was wrong and regulation wasn’t required [under Massachusetts vs. EPA's mobile source ruling]. Perhaps it would have to make additional threshold findings, but EPA would still be free to regulate greenhouse gases from major sources or propose new source performance standards for coal and gas-fired power plants, and for existing source standards by next June according to the President’s instructions,” Collins continued.

The nine Supreme Court justices won’t hear petitioners’ oral arguments until early 2014.

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