Utility Air Regulatory Group v. EPA, American Chemistry Council v. EPA, Energy-Intensive Manufacturers v. EPA, Southeastern Legal Foundation v. EPA, Texas v. EPA, Chamber of Comm. v. EPA (Consolidated)

In this case, the Supreme Court will decide whether the EPA’s regulation of GHGs through the PSD and Title V permitting programs of the CAA increases the programs’ scope beyond what Congress intended. Petitioners contend that several CAA provisions show that the PSD program was intended to apply solely to NAAQS pollutants, and that the PSD and Title V programs were only meant to regulate local ambient air quality. See Brief of State Petitioners, at 8–22; see Brief for Respondents Coalition for Responsible Regulation et al. in Support of Petitioners, at 16–25. The EPA responds that GHG regulation under the PSD and Title V programs resulted from the simplest interpretation of the CAA and is well within the scope of the CAA and Congress’s intent to protect public health and welfare from air pollution. See Brief for Federal Respondents, at 24–37.

THE TIMING RULE: TRIGGERING PSD AND TITLE V PROGRAMS

The EPA argues that it has authority to regulate GHGs under the PSD and Title V programs of the CAA. The EPA’s Timing Rule determines that a pollutant becomes “subject to regulation” at the moment when regulations regarding that pollutant are promulgated under the CAA. Coalition for Responsible Regulation, 684 F.3d at 115. Therefore, the EPA contends that when it began regulating GHG emissions from mobile sources by issuing the Tailpipe Rule, GHGs became a “pollutant subject to regulation” under the CAA. Brief for Federal Respondents, at 24. Accordingly, in the EPA’s view, because GHGs were now subject to regulation, the permit requirements under the PSD and Title V programs were triggered. Id.(citing 42 U.S.C. § 7473).

Respondent Coalition for Responsible Regulation (the Coalition), citing the text and structure of the CAA, rejects the EPA’s interpretation. First, the Coalition contends that the EPA did not follow the correct steps under the CAA for extending the PSD program to pollutants other than those originally listed. Brief for Respondent Coalition for Responsible Regulation, at 16. The Coalition asserts that rather than allowing automatic PSD permitting for all pollutants under the Act, Section 166 of the CAA lays out specific instructions for how the EPA must regulate criteria and other pollutants under the PSD program. See Id. at 16–19 (citing 42 U.S.C. §7476). Second, the Coalition argues that looking broadly at the structure of the CAA, it is apparent that “any air pollutant” refers to any NAAQS pollutant, which are regulated under a scheme that separates attainment areas (areas where specific pollutant levels are safe) and nonattainment areas (areas where specific pollutant levels negatively affect public health or welfare). See Id. The Coalition states that the PSD program’s purpose is to prevent factories from moving from nonattainment areas to attainment areas, thus avoiding regulation while sullying the clean areas. See Id. The Coalition points to Section 161 of the CAA, which provides that the PSD program shall only apply to each region designated as attainment or unclassifiable. See Id. at 17–18 (citing 42 U.S.C. §7471). However, because GHG levels are uniform worldwide there cannot be attainment, nonattainment, and unclassifiable areas as there are with local pollutants. See Id. at 18. Therefore, the Coalition infers from this statutory language that Congress only intended NAAQS pollutants to be regulated under the PSD program. See Id.

The EPA counters that the Coalition’s reading of the statute as only applying PSD requirements to NAAQS pollutants fails to account for Section 165(3), which requires PSD-regulated facilities to not contribute to air pollution in excess of any NAAQS standard or “any other applicable emission standard” under the CAA. See Brief for Federal Respondents, at 29–30 (citing 42 U.S.C. 7475(a)(3)(B)–(C) ). Responding to the Coalition’s argument that the PSD program cannot apply because no attainment area for GHGs exists, the EPA argues that applying this reasoning would create anomalies in the PSD program unrelated to GHGs. See Id. at 52. Rather, the EPA argues that under the agency’s longstanding interpretation, PSD requirements apply to all major emitting sources of any pollutant where the facilities are located in an area designated as attainment or unclassifiable for one or more criteria pollutants. See Id.at 52–53.

THE TAILORING RULE: CONGRESSIONAL INTENT TO REGULATE GREENHOUSE GASES

Petitioners contend that the EPA lacks authority to regulate GHGs under the PSD or Title V programs, because it expands the programs’ scope to the point that they are unrecognizable. Brief for State Petitioners, at 4. Specifically, Petitioners argue that Congress’s narrow scope for these programs is evidenced by the fact that the EPA had to modify the strict numerical triggers through the Tailoring Rule in order to prevent administrative chaos. See Id. Petitioners maintain that if the Court determines that the EPA reasonably interpreted the CAA in implementing the PSD and Title V programs through the Timing Rule, then it nevertheless must vacate the Tailoring Rule, because the CAA sets out unambiguous, numerical thresholds. See Id. at 9. Petitioners assert that the EPA cannot justify multiplying the clear numerical thresholds listed in the CAA for the PSD and Title V programs by 750 to 1000 times on the basis that to enforce the standards set out in the CAA would lead to the absurd result of regulating an unmanageable number of small emitters. See Id. at 9, 17.Instead, Petitioners contend, the EPA can avoid this absurd result by declining to apply the Timing Rule or forcing Congress to take corrective action by applying the required standards. See Id. at 20.Petitioners argue that allowing the EPA to change the strict numerical standards gives EPA impermissible legislative authority in contravention of the nondelegation doctrine, whereby legislative power is reserved to Congress. See Id. at 20–24.

The EPA claims that it has authority to increase the threshold triggers for permitting requirements. The EPA contends that it needed to temporarily apply a higher threshold level to avoid a conflict between the congressional directive in the CAA to set certain numerical levels, with the congressional order that permits be processed expeditiously. See Brief for Federal Respondents, at 47–48. In the EPA’s view, because the threshold amounts in the CAA are an inappropriate measure of carbon dioxide impact, the Tailoring Rule was within the Agency’s broad discretion to allocate its limited resources and personnel. See Id. at 48–49. The EPA continues that this temporary numerical adjustment is more consistent with the CAA than the alternatives proposed by Petitioners of declining to follow the EPA’s longstanding interpretation of “pollutants subject to regulation” or setting unworkable standards to force Congress to act. See Id. at 49–51. The EPA admits the CAA drafters did not fully realize the consequences of burning fossil fuels, but the EPA maintains that the CAA is a broad regulatory scheme that gives the agency flexibility to implement the CAA’s goals of protecting public health and welfare from air pollution. See Id. at 51.

REGULATION OF POLLUTANTS THAT DO NOT AFFECT AMBIENT AIR QUALITY

Finally, Petitioners argue that unlike the CAA’s treatment of mobile sources—the CAA section directly at issue in the Massachusetts decision that delegates power to the EPA to protect public health and welfare—the CAA’s PSD provisions require the EPA to focus on the deterioration of ambient air quality. See Brief for Petitioners, Utility Air Regulatory Group et al., at 25. Petitioners contend that because the danger of carbon dioxide emissions are in its global effects—i.e., humans are not at risk from breathing large quantities of carbon dioxide, but are at risk from the global effects of climate change such as drought and extreme weather—the PSD program is not being used for its appropriate purpose of preventing deterioration of ambient air qualityin specific geographic regions. See Id. at 25–26.

The EPA contends that Petitioners’ argument relies on an interpretation of “ambient air” that the Court rejected in Massachusetts. The EPA asserts that in Massachusetts the Court concluded that the CAA uses “ambient air” without distinguishing between atmospheric layers—allowing the CAA to govern air at ground level equally to air in the upper levels of the atmosphere. See Brief for Federal Respondents, at 31. Moreover, the EPA points out that in the 1990 Amendments to the CAA, Congress overhauled restrictions on certain well-mixed gases that deplete the ozone layer, while simultaneously taking care to move local hazardous pollutants to another part of the statute. See Id. at 33. Accordingly, the EPA infers from this action that Congress never intended that the PSD program only regulate local pollutants affecting air quality. See Id.