Supreme Court to Hear Challenge to EPA Greenhouse Gas Permits

The smoke stacks at American Electric Power's (AEP) Mountaineer coal power plant in New Haven, West Virginia, October 30, 2009. In cooperation with AEP, the French company Alstom unveiled the world's largest carbon capture facility at a coal plant, so called 'clean coal,' which will store around 100,000 metric tonnes of carbon dioxide a year 2,1 kilometers (7,200 feet) underground.
National Journal
Ben Geman
Feb. 24, 2014, 12:37 a.m.

The Su­preme Court will hear ar­gu­ments Monday in a chal­lenge by in­dustry groups and con­ser­vat­ive states to the En­vir­on­ment­al Pro­tec­tion Agency’s ini­tial green­house gas rules for large pol­lu­tion sources like power plants and factor­ies.

The justices are ex­plor­ing wheth­er EPA, early in the Obama ad­min­is­tra­tion, erred by de­cid­ing that reg­u­la­tion of vehicle tailpipe emis­sions triggered green­house gas per­mit re­quire­ments for these big sta­tion­ary pol­luters.

On its face the case is pretty nar­row. It’s not about EPA’s un­der­ly­ing au­thor­ity to reg­u­late heat-trap­ping emis­sions, and it’s not about up­com­ing car­bon di­ox­ide stand­ards for power plants.

In­stead it cen­ters on a Clean Air Act per­mit­ting pro­gram that re­quires large new and mod­i­fied pol­lu­tion sources to take steps to lim­its emis­sions. (In prac­tice this has meant im­prove­ments in en­ergy ef­fi­ciency that many com­pan­ies were un­der­tak­ing any­way, the head an as­so­ci­ation of state reg­u­lat­ors said last Oc­to­ber when Su­preme Court an­nounced it would hear the case.)

But the stakes ““ polit­ic­al and oth­er­wise ““ are non­ethe­less high and the case has at­trac­ted heavy in­volve­ment from reg­u­lated in­dus­tries, en­vir­on­ment­al­ists, and states that are both at­tack­ing and de­fend­ing EPA.

As the As­so­ci­ated Press notes in a story on the case: “[A] court rul­ing against EPA al­most un­doubtedly would be used to chal­lenge every step of the agency’s ef­fort to deal with cli­mate change, said Jac­ob Hollinger, a part­ner with the Mc­Der­mott Will and Emery law firm in New York and a former EPA law­yer.”

Har­vard Uni­versity law pro­fess­or Richard Laz­arus, a long­time ex­pert on en­vir­on­ment­al law, tells The Wash­ing­ton Post that if EPA loses, “you can be sure the court’s de­cision will be read as a re­pu­di­ation of what Obama’s do­ing.”

But the same Post table-set­ter on the case notes that an EPA vic­tory could be read as an af­firm­a­tion of Pres­id­ent Obama’s push to tackle cli­mate change us­ing ex­ec­ut­ive powers.

Parties chal­len­ging EPA in­clude the U.S. Cham­ber of Com­merce, re­fin­ing in­dustry groups, power com­pan­ies, the Na­tion­al As­so­ci­ation of Man­u­fac­tur­ers, and more.

A co­ali­tion of con­ser­vat­ive states such as Texas and Alabama is also chal­len­ging EPA’s cli­mate rules, while a sep­ar­ate co­ali­tion that in­cludes Cali­for­nia, New York and Mas­sachu­setts is de­fend­ing the reg­u­lat­ors.

The Amer­ic­an Bar As­so­ci­ation has a handy primer on the case and cop­ies of all the briefs here.

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