In Utility Air Regulatory Group v. EPA, seven parties are petitioning the Supreme Court to overturn the EPA’s regulation of greenhouse gas emissions from stationary sources through the Clean Air Act’s prevention of significant deterioration (PSD) preconstruction permit program and Title V operating permit program.
The sole question before the Court is:
Whether EPA permissibly determined [in its April 2010 Timing Rule] 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.
UARG v. EPA is a very big deal. Congress has never enacted a bill to regulate greenhouse gases from stationary sources, and it’s far from certain courts will uphold the EPA’s proposed “carbon pollution rule” to regulate just one type of stationary source — electric power plants. Yet the Timing Rule extends regulatory requirements to potentially all “major” greenhouse gas emitters of whatever type or description, throughout the entire economy, in one fell swoop.
The Timing Rule codifies the EPA’s legal theory that regulation of any air pollutant under any part of the Clean Air Act automatically makes major sources of that pollutant “subject to regulation” under PSD and Title V. Thus, according to the Timing Rule, major sources of carbon dioxide (CO2), the chief anthropogenic greenhouse gas, became subject to regulation on Jan. 2, 2011, the day the EPA’s greenhouse gas Tailpipe Rule took effect.
As even the EPA acknowledges, however, the Timing Rule leads straight to absurd results, because CO2 is emitted in much greater quantities and by many more sources than any pollutant that can cause “significant deterioration” of air quality.
The Clean Air Act defines “major” source as one with the potential to emit 250 tons per year of an air pollutant (PSD) or 100 tons per year (Title V). Only large industrial facilities emit air quality contaminants in those quantities. In contrast, upwards of 1 million small entities, including office buildings, churches, hospitals, schools, and commercial restaurants, combust enough heating oil or natural gas to emit 250 tons of CO2 annually. An estimated 6.1 million small entities, including some large single-family residences, emit 100 tons of CO2 annually.
The regulatory results of the Timing Rule are absurd in two main ways:
- Regulation of myriad small “major” sources conflicts with Congress’s intent to exclude non-industrial facilities from PSD and Title V regulation.
- Expanding by orders of magnitude the number of PSD/Title V-regulated sources would overwhelm permitting agencies’ administrative resources, causing ever-growing bottlenecks and delays that cripple environmental enforcement and economic development alike.
Rather than draw the obvious conclusion that Congress never intended for the EPA to apply PSD and Title V to greenhouse gases, the agency in June 2010 issued a Tailoring Rule, which effectively rewrites the statutory definitions of “major” source so that only facilities emitting 100,000 tons of greenhouse gases will be subject to regulation. The Tailoring Rule is itself an absurd solution, however, because agencies have no power under the U.S. Constitution to amend statutes.
All seven petitioner groups in UARG v. EPA argue that the Timing Rule conflicts with congressional intent. However, the brief submitted by the Energy Intensive Manufacturers Working Group on Greenhouse Gas Regulation and the Glass Packaging Institute catalogues several ways in which the Timing Rule ‘deforms’ the permitting provisions. I found much of this discussion new and compelling.
Excerpts from the brief follow.
[click to continue…]