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The so-called "War on Christmas" has nothing on the "War on the Federal Clean Air Act."
Since the passage of the first substantial amendments to the Federal Clean Air Act in 1970, there has been a constant war waged by industrial and other interests on the Federal Clean Air Act, which was Senator Edmund Muskie's creation.  

Tomorrow we all get to view the latest skirmish in this 40+ year long war with an oral argument before the United States Supreme Court in the case of EPA's rules for federal and state permitting of greenhouse gas emission sources, also known as the greenhouse gas tailoring rules.

These greenhouse gas tailoring rules for new source review permitting of greenhouse gas emission sources are presently in effect and being enforced in the United States.   The rules are a product of President Obama's past good decisions on the Clean Air Act and greenhouse gas emission control matters.

The present case before the Supreme Court originally involved several issue challenges and lines of attack against EPA's tailoring rules.   Last October, the U.S. Supreme Court granted cert for petitions challenging the EPA greenhouse gas tailoring rules.   However, in granting cert on the industry and state petitions before it, the Supreme Court limited the case to a single issue:

“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.”
The cert decision effectively leaves in place the majority of a previous D.C. Circuit decision that affirmed EPA's rules and authority.   Only the single issue will be reviewed before the Court.    

The Supreme Court's limitation on the single issue it would consider is a hopeful sign.   However, even considering this single issue it would be entirely possible under  various petitioners' theory of the case for the Supreme Court to strike down EPA's regulations.   Such an adverse decision by the Supreme Court would likely end up delaying and rendering ineffective a considerable portion of EPA's greenhouse gas emission control actions under the Clean Air Act for many years until congressional action on a Clean Air Act amendment had occurred to resolve the issue.

Some commentators have minimized the importance of this case by saying that EPA's authority to issue new source performance standards for greenhouse gas emissions from power plants would not be jeopardized, like this piece from BNA.   This particular challenge does not address EPA's authority to issue greenhouse gas emission control rules as the New Source Performance Standards for fossil-fueled power plants issued under Section 111 of the Act.

However, if the Court struck down EPA's rules with the relief envisioned by the industry and state petitioners, such an action would prevent EPA from requiring states to include greenhouse gas emission limitation provisions in new source review permits which would require compliance with either best available control technology requirements or  EPA's power plant NSPS rules.   This means that much of EPA's CAA authority jurisdiction for regulating greenhouse gases by new source review permits would be eliminated by an adverse SC decision.

The industry/business petitioners include the Utility Air Regulatory Group, American Chemistry Council, Energy Intensive Manufactures, Southeastern Legal Foundation and the U.S. Chamber of Commerce.   Some of these petitioner have been signed by a wide host of other industrial groups to be represented in the petitions.

States seeking the invalidation of EPA's greenhouse gas emission control permitting and control technology regulations include Texas, Michigan, Indiana, Georgia, Alabama, North Dakota, South Dakota, Nebraska, South Carolina, Oklahoma, Louisiana and Florida (red state challengers).

Most of the briefs in this case filed by the parties, respondents and amicus filers are listed and can be downloaded here from Scotusblog.

If you want to just read a few specific briefs, look at EPA's brief and the environmental organization respondent's brief (which is signed by such enviro-organization senior A-team status Clean Air Act attorneys as David Donigar (NRDC) and  Howard Fox / David Baron (Earthjustice)).

Also worth noting is the mostly blue state-repondents brief led by New York.

On the petitioners side, look at the American Chemistry Council brief, the Utility Air Regulatory Group brief and brief of red-states Texas, et al.

At the heart of this dispute is EPA's determination that the act of its publication of greenhouse gas emission control rules for mobile sources meant that greenhouse gas emissions (as carbon dioxide equivalents) would be subject to the requirement for prevention of significant deterioration permits and related requirements for best available control technology for large sources of greenhouse gas emissions.

In the vernacular of the Clean Air Act, the mobile source regulation of greenhouse gas emissions caused these pollutants to be regulated for purposes of stationary source control by the EPA-published definition for "Regulated NSR Pollutant" (40 CFR Sec 52.21(b)(50) and "Subject to Regulation" (40 CFR Sec. 52.21(b)(49))

The industry and red state petitions seek to undo EPA's decision, thus striking a decisive blow against Clean Air Act regulation of greenhouse gas emissions.

The red state petition, led by Texas, first denies several decades of established law indicating how pollutants that are not regulated by National Ambient Air Quality Standards are regulated under the Clean Air Act as 'regulated NSR pollutants.'   Next, red states assert that EPA must conform to major source definitions if greenhouse gases are regulated under the act.  Finally, the red states attempt to re-argue, in effect, the Massachusetts v. EPA case that first established mobile source greenhouse gas emission limitation by arguing this case be overturned, in effect.

The industry petitions argue most of the same issues with different emphasis.

However, if the Supreme Court adopted the position of the petitioners and considered that the mobile source GHG decision did not trigger regulation under the prevention of significant deterioration (PSD), such a decision would have the effect of precipitously deregulating pollutants which have been regulated under PSD for decades, as pointed out by the American Thoracic Society (pulmonary and respiratory critical care physicians)

What this all means in practice is that if the Supreme Court adopts the red state and industry petition arguments on a 5 to 4 vote, not only would greenhouse gas emissions be deregulated....such a decision would also precipitously deregulate presently-regulated dangerous pollutants like hydrogen sulfide, hydrogen fluoride, sulfuric acid aerosal, total reduced sulfur, municipal landfill methane emissions and municipal waste combustor toxic metals, acid gases and other toxicants.


12:53 PM PT: Here is an EPA fact sheet on its final greenhouse gas tailoring permitting rules:

1:18 PM PT: What is absolutely clear in the present case is that the red state and industry petitioners are both out to deny decades of EPA's established interpretation of the Clean Air Act on the matter of how pollutants that don't have National Ambient Air Quality Standards are regulated under the Act.

2:45 PM PT: I sure wish the Supreme Court would update itself by videotaping or live streaming its public proceedings online for the entire USA to see.

3:13 PM PT: Here is a pertinent article from The Hill on this case:

3:17 PM PT: Without any doubt, the Supreme Court decision in this present case will be the most important decision the Supreme Court makes on the global warming issue during 2014.

Mon Feb 24, 2014 at 10:34 AM PT: The media keep getting this case wrong....saying that EPA's authority to publish New Source Performance Standards would somehow leave EPA with a practical greenhouse gas control program.    PSD permits and Title V operating permits which are being challenged by industry and red state petitioners are necessary to set NSPS emission limitations.   EPA's NSPS rules are not directly enforceable against sources.  Emission limitations from NSPS have to be incorporated in new source review permits in order to be federally enforceable and effective.   If PSD new source review permits cannot contain greenhouse gas emission limitations, then there is no way to enforce NSPS requirements on greenhouse gases.

Losing this present case is losing virtually the entire greenhouse gas emission control program at EPA, and a loss could not be fixed without an act of congress.

Originally posted to LakeSuperior on Sun Feb 23, 2014 at 12:41 PM PST.

Also republished by Climate Hawks, Kosowatt, and DK GreenRoots.


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