UARG Reaction

The big UARG, et al. v. EPA, et al. decision dropped this morning. I’ve posted the decision below. What follows are my snap reactions. I’ll update when I’ve better digested the rule.

Only two justices (Alito & Thomas) rendered a correct interpretation of the Clean Air Act and found that greenhouse gases are “fundamentally incompatible” with the Prevention of Significant Deterioration program, including the requirement for Best Available Control Technology, and also the Act’s Title V permitting program. As a result of today’s unfortunate ruling, which was basically an adoption of the American Chemistry Council’s opening position/Judge Kavanaugh’s dissenting opinion*, EPA will continue to try to hammer a square peg (regulating GHGs) into a round hole (the PSD/Title V programs). It should be noted that there are no actual environmental improvements attendant to EPA’s climate rules, because they won’t in any way impact climate change.

There is a possible silver lining. This term, in the course of permitting EPA regulatory regimes for visibility improvement and interstate pollution (either by ruling or refusal of cert) the Supreme Court facilitated an expansion of EPA discretion to interpret the Clean Air Act however the agency saw fit. With today’s decision in UARG, we at least have established a line in the sand regarding deference to agency decision making: The agency will not be permitted to blatantly re-write laws.** This is, alas, a pretty low bar.

*Ultimately, all of the industry & state petitioners adopted the ACC’s argument–which, again, effectively prevailed–as a fall back, secondary argument to their primary case, that GHGs are incompatible with PSD & Title V. The ACC argument, in turn, is very close in nature to D.C. Circuit Judge Brett Kavanaugh’s dissent to that court’s refusal of an en ban hearing of the 3 judge panel’s UARG decision. In a nutshell, ACC/Kavanaugh argued that GHGs can’t be a trigger by which a stationary source is made subject to PSD, but they can fall within the ambit of BACT, which is the major PSD requirement. Such a reading is somewhat counter-intuitive: BACT is a component of PSD, but applies more broadly than PSD. The practical impact is that non-GHG emissions can trigger PSD for a source; and a part of PSD is BACT for GHGs. Confusing, right?

**The agency had attempted to “tailor” the Clean Air Act in order to make workable the agency’s long-standing interpretation that the emission of any regulated pollutant by a “major” stationary source could trigger PSD. The Court’s 5-4 ruling rejected this interpretation, because it necessitated a rewriting the Act and also resulted in a large expansion of federal power. As I explain in the above endnote, even if GHGs aren’t a PSD trigger, stationary sources subject to PSD still will have to adopt the major PSD requirement (BACT) for GHGs.

UARG Decision