Supreme Court to take up narrow question related to EPA's greenhouse gas regulatory authority

The U.S. Supreme Court announced Oct. 15 that it will review a narrow question related to the scope of the Environmental Protection Agency's authority to regulate greenhouse gas emissions.

In its order, the court took the unusual step of crafting its own question on which certiorari was granted. The justices asked the parties to brief "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.”

"Everybody's scratching their head about the question they took," Patrick Parenteau, a professor and senior counsel to the Natural Resources Law Clinic at Vermont Law School, said.

That question appears to be one that is well-settled. It arises from two regulations issued by EPA in the aftermath of the 2007 decision in Massachusetts v. Environmental Protection Agency.

In that case the court ruled that EPA must decide whether carbon dioxide is a pollutant subject to regulation under the Clean Air Act. The administration of former President George W. Bush had argued that EPA lacked the authority to regulate carbon dioxide emissions to the atmosphere.

Following the decision, EPA issued four rules. The first was a decision that carbon dioxide does pose a threat to public health. This endangerment finding set the stage for more specific regulations aimed at limiting emission of the greenhouse gas to the atmosphere by both mobile and stationary sources.

In June 2012, in a case called Coalition for Responsible Regulation v. Environmental Protection Agency, the U.S. Court of Appeals for the District of Columbia Circuit held that the agency had the authority to issue the endangerment finding for carbon dioxide.

The second post-Massachusetts v. Environmental Protection Agency rule limited motor vehicle emissions. This tailpipe rule was finalized in 2010 and was also upheld by the U.S. Court of Appeals for the District of Columbia Circuit in the same case that involved an attack on the carbon dioxide endangerment finding.

The Supreme Court declined to grant review of either of those two aspects of the decision in the Coalition for Responsible Regulation case.

Following the finalization of the tailpipe rule, EPA next moved to regulate carbon dioxide emissions from stationary sources. To do this, the agency first announced a timing rule that specified the chronological conditions under which sources of carbon dioxide would become subject to regulation, making clear that stationary sources of carbon dioxide pollution would not be subject to emission limits until a specific rule focused on that subject was finalized, and then issued a tailoring rule that enunciated the statutory basis of that regulation.

That basis is section 202 of the Clean Air Act, which was also the foundation for the tailpipe rule. It is that linkage that prompted the attack on this part of the Obama administration's climate change regulatory program that is now under review by the justices.

Under an interpretation of the statute that is several decades old, EPA concluded that, since carbon dioxide emissions are subject to regulation under section 202 of the Clean Air Act, stationary sources of the pollutant are likewise prone to regulation under two separate provisions of the law.

One, called the Prevention of Significant Deterioration of Air Quality program, requires state-issued permits for some stationary sources, such as steel mills and iron foundries, that discharge to the atmosphere more than 100 tons per year of "any pollutant" and other stationary sources that discharge "any pollutant" in an amount exceeding 250 tons per year.

The other is an entire section of the law that also applies to "any pollutant" and similarly imposes the 100 ton-per-year threshold.

The Coalition for Responsible Regulation court upheld this interpretation of the Clean Air Act and it is that interpretation that will now be reviewed by the Supreme Court.

"The crux of the case is going to come down to this question: Are the only sources that are covered by section 165, the requirement of a PSD permit, those that emit NAAQS pollutants?," Parenteau said.

He was referring to the statutory section of the Clean Air Act that sets forth the prevention of significant deterioration of air quality requirements and the law's classification of certain pollutants for which a particular kind of permit to discharge is required.

"That's the industry's argument," Parenteau explained. "They say that carbon dioxide is not a NAAQS pollutant and, because they are not a hazardous air pollutant, the sources that emit carbon dioxide are simply not covered by section 165. Well, if you actually look at the text of section 165, you'll see two things. One, it refers to 'any air pollutant.' Many years ago, EPA interpreted that phrase to mean 'any air pollutant regulated under the Clean Air Act.' That's a long-standing interpretation. That's not new."

In 1980 EPA said that a stationary source would be subjected to review under the Clean Air Act's PSD program if it "emit[s] any pollutant in major amounts . . . and [is] located in an area designated attainment or unclassifiable for that or any other pollutant.” The agency explained that “'any pollutant'” means “both criteria pollutants, for which national ambient air quality standards have been promulgated, and non-criteria pollutants subject to regulation under the Act.”

In 2002, during the George W. Bush administration, the agency reiterated this understanding of the Clean Air Act's reach.

The tailoring rule recognizes that, because the agency's interpretation of the statutory language could extend EPA's regulatory reach to thousands of stationary sources, a limit on the size of affected sources is necessary. The rule is limited to new sources that emit at least 100,000 tons of carbon dioxide each year and existing sources that undergo a modification that would cause at least 75,000 tons per year to be discharged to the air.

Industry advocates have argued that EPA lacks the authority to limit the reach of its regulatory program under the Clean Air Act and, moreover, that the PSD provisions of the law on which that program is based are available only if the agency has first decided that the pollutant in question - in this case, carbon dioxide - is part of the National Ambient Air Quality System. The NAAQS, in turn, is limited to the pollutants, like those that make up the components of smog, that pose a danger to an individual's health when breathed.

Parenteau thinks this argument is not likely to go very far because the language of the Clean Air Act does not limit EPA's discretion in the way industry asserts it does.

"If you drive down further into section 165, you’ll see in (a)(3), there are three subsets referred to there," he said. "One is NAAQS, but then it says 'or' any other emission standard under the act. My view is that the disjunctive gives EPA the authority."

The relevant language of section 165(a)(3) of the Clean Air Act provides that

No major emitting facility on which construction is commenced after August 7, 1977, may be constructed in any area to which this part applies unless -

. . .

(3) the owner or operator of such facility demonstrates, as required pursuant to section 7410 (j) of this title, that emissions from construction or operation of such facility will not cause, or contribute to, air pollution in excess of any

(A) maximum allowable increase or maximum allowable concentration for any pollutant in any area to which this part applies more than one time per year,

(B) national ambient air quality standard in any air quality control region, or

(C) any other applicable emission standard or standard of performance under this chapter[.]

. . .

"I think EPA’s interpretation is reasonable," Parenteau said. "I don’t see how the court can rule, as a matter of law, that this interpretation is not open to EPA as a matter of law."

Given the views of at least two of the court's conservative justices on the question whether to disregard clear statutory language in the face of contradictory or ambiguous legislative history, Parenteau's point may be well-taken.

Justice Antonin Scalia, for example, has long eschewed the practice of looking to legislative history as a tool for understanding the meaning of a statute. He has, instead, asserted in opinions and books that a record of the debate by legislators on a bill offers no assistance to a judge at all.

For example, in one 2006 case Scalia wrote a concurring opinion in which he asserted that "[t]he use of legislative history is illegitimate and ill advised in the interpretation of any statute."

Among the justices, Scalia is the most adamantly opposed to going beyond the text of a statute to decipher Congressional intent. Others, however, have also expressed caution about doing so.

For example, Justice Samuel Alito, while a circuit judge, wrote opinions on several occasions in which he explained his view that indicia of legislative intent found in committee reports and the like cannot override the plain language of a statute.

In one 1999 case, he made his view on the issue clear, writing that "even if I were convinced that Congress harbored some general purpose that was inconsistent with those specific provisions, I would follow the specific language that Congress duly enacted."

Justice Anthony Kennedy was part of the majority in Massachusetts v. Environmental Protection Agency. He also signed on to the majority opinion in the 2011 case of American Electric Power v. Connecticut, which re-affirmed EPA's authority to regulate greenhouse gases under the Clean Air Act.

Given that Justices Ruth Bader Ginsburg, Stephen G. Breyer, Sonia M. Sotomayor, and Elena Kagan have generally supported federal regulatory efforts relating to environmental protection, and that Ginsburg and Breyer agreed to the Massachusetts v. Environmental Protection Agency majority opinion, few, if any, observers of the court expect them to hold that EPA exceeded its authority in issuing the tailoring rule.

Parenteau suggested that it is possible the Supreme Court acted hastily in deciding whether to review the question of EPA's authority to link regulation of stationary carbon dioxide pollution sources to the Clean Air Act's provisions relating to motor vehicle emissions.

"It’s entirely possible that they’ll look at this case, see what EPA has done, and say it’s fine," he said. "They might also say that EPA should have made a separate determination for stationary sources. To me, that’s a silly way to spend your time, to say you needed to be more clear about this."

The cases are Utility Air Regulatory Group v. Environmental Protection Agency, No. 12-1146; American Chemistry Council v. Environmental Protection Agency, No.12-1248; Energy-Intensive Manufacturers Working Group on Greenhouse Gas Regulation v. Environmental Protection Agency, No. 12-1254; Southeastern Legal Foundation v. Environmental Protection Agency, No. 12-1268; Texas v. Environmental Protection Agency, No. 12-1269; and Chamber of Commerce of the United States v. Environmental Protection Agency, No. 12-1272.

A decision by the Supreme Court is expected by July 2014.



Image courtesy Wikimedia.

Cross-state pollution rule to get scrutiny by U.S. Supreme Court

The U.S. Supreme Court will decide next term whether a controversial Clean Air Act regulation can be implemented.

Requests for review of a lower court decision striking down the Cross-state Air Pollution Rule were filed by the Obama administration as well as a coalition of non-profit organizations including the American Lung Association and several environmental advocacy organizations.

The U.S. Court of Appeals for the District of Columbia Circuit held in August 2012 that CSAPR  exceeded the Environmental Protection Agency's authority under the Clean Air Act.

CSAPR would apply to 28 states, all in the eastern and southern regions of the country, requiring them to limit emissions of several pollutants that travel at high altitude across borders into surrounding states.

Environmentalists argue that the rule will save as many as tens of thousands of lives each year because smog and particulate pollution would be reduced. EPA has said that it believes the rule would generate at least $120 billion in annual health and environmental benefits, a sum that is well in excess of the costs of compliance expected to be incurred by regulated entities.

The Supreme Court issued the order granting petitions for certiorari in the case on Monday.

The cases are United States Environmental Protection Agency v. EME Homer City Generation, L.P., No. 12-1182, and American Lung Association v. EME Homer City Generation, L.P., No. 12-1183.

Oral arguments will be conducted after the Court's 2013-2014 term begins in October. A decision is expected before July 2014.

EPA finalized CSAPR in July 2011. The D.C. Circuit's order invalidating it also required the agency to reinstate a less expansive rule having the same objective that was instituted by the George W. Bush administration.

Supreme Court dismisses only environmental law case on 2013-2014 docket

The U.S. Supreme Court might not have to decide soon questions relating to environmental law.

The justices dismissed on Monday the only case raising such questions that had been on its docket for next year.

In an unsigned, one-line order the Court vacated the judgment of the U.S. Court of Appeals for the Ninth Circuit in U.S. Forest Service v. Pacific Rivers Council and ordered the district court to dismiss the case on mootness grounds.

The Court's action has alarmed some commentators.

Richard M. Frank, a University of California at Davis law professor, wrote on the respected Legal Planet blog that the order might reflect a belief by environmental advocacy organizations that they cannot get a fair hearing at the Supreme Court.

Frank explained that the plaintiffs in the case, including Portland-based Pacific Rivers Council, entered into an agreement with the United States government not to further challenge USDA Forest Service's compliance with the National Environmental Policy Act in a dispute over planning of management actions on national forests in the Sierra Nevada mountains.

The Ninth Circuit rejected the 2004 planning effort on grounds that the Forest Service's efforts did not properly account for the impacts of planned extraction and other activities on fish populations within the national forests in that region.


Historically, NEPA has not faired well in the Court. One analysis demonstrated that environmental groups have never convinced the Court to rule in their favor in a case arising under the law in its entire 44-year history.

Other environmental laws have also not fared well before the Court lately. During this year's term the justices overturned two Ninth Circuit decisions that enforced the Clean Water Act.

U.S. Supreme Court denies certiorari in case upholding spotted owl critical habitat

The U.S. Supreme Court sidestepped Tuesday an opportunity to review a lower court decision that upheld the designation of millions of acres of land as critical habitat for the threatened Mexican spotted owl.

The denial of a petition for certiorari came in a case filed by cattle ranchers in the southwest.

The U.S. Court of Appeals for the Ninth Circuit ruled in June 2010 that the U.S. Fish and Wildlife Service had provided a valid economic analysis in support of the designation and did not violate the Endangered Species Act by including in the designation land that did not contain any owls.

In general, the ESA requires USFWS to designate critical habitat for a listed species at the time of listing.

In the case of the Mexican spotted owl, the administration of former President George W. Bush designated 8.6 million acres in Arizona, Colorado, New Mexico, and Utah as critical habitat in 2004.

The species was added to the list of threatened and endangered species in 1993. A previous critical habitat designation by the Clinton administration was withdrawn in 1998.

The Mexican spotted owl (Strix occidentalis lucida) is the smallest of the spotted owl species, which include the California spotted owl and the northern spotted owl. The species lives in old growth forests in mountains and canyons located in a range extending from southern Utah and Colorado through Arizona and New Mexico and into west Texas and northern and central Mexico.

A predatory animal, Mexican spotted owls are nocturnal. Climate change is the most significant risk to their forest habitat.

The case is Arizona Cattle Growers Association v. Salazar.

Photo courtesy U.S. Fish and Wildlife Service.

U.S. Supreme Court denies review in three closely-watched environmental law cases

The New York Times and Greenwire are reporting that the U.S. Supreme Court has declined the chance to consider several lower court environmental law decisions that have been closely watched by both industry and environmentalists.

The biggest of the three cases involves the question whether farmers must obtain a permit under the federal Clean Water Act to use a pesticide even if they have already gained separate clearance under the Federal Insecticide, Fungicide and Rodenticide Act.

A federal appeals court in Cincinnati ruled last year that the U.S. government is obliged to require farmers to obtain both authorizations.

Forty members of Congress had urged the Supreme Court to hear the dispute.

In another case, the Supreme Court denied a request that it consider a case challenging the a decision by the U.S. Fish and Wildlife Service to designate a wildlife refuge in an area of Texas sought by the city of Dallas for water development.

The U.S. Court of Appeals for the Fifth Circuit ruled in March 2008 that the agency did not violate the National Environmental Policy Act.

Finally, the Court refused to hear a case in which an agricultural corporation sought compensation under the Fifth Amendment of the U.S. Constitution for revenue lost when federal officials forced it to destroy, or sell at low prices, eggs suspected of being contaminated with salmonella.

A lower court rejected the farming company's claim that a "regulatory taking" occurred.

A decision by the Supreme Court to decline to review a case, an action technically known as a "denial of certiorari," is not a statement by the Court about its view of the merits of the lower court's opinion.

Supreme Court to Hear Exxon's Valdez Case Appeal

The U.S. Supreme Court announced Monday that it will review a decision upholding a $2.5 billion punitive damages award against Exxon Corp. and its shipping subsidiary that arose from the 1989 Valdez oil spill.

That incident, which occurred March 24, 1989 on Bligh Reef in Prince William Sound, Alaska, caused the leak of about 11 million gallons of crude oil. About 1,500 miles of Alaskan coastline was damaged and populations of aquatic life, sea birds, and other wildlife species declined precipitously. According to a New York Times report on the case today,

"Hundreds of bald eagles and otters, scores of killer whales and thousands of birds of other species perished, as did untold numbers of salmon, herring, clams, mussels and other forms of aquatic life.

"The spill caused personal tragedy and hardship as well as environmental damage. The livelihoods of Alaska fishermen were threatened, and a decade after the disaster the shoreline was still not back to its pre-spill condition."

The tanker's captain, Joseph Hazelwood, was reported to be resting in his cabin in an intoxicated condition when the accident occurred.

The case has a long history. A federal district court jury in Alaska found in 1994 that ExxonMobil and Captain Hazelwood were reckless and negligent in causing the spill and awarded $5 billion in punitive damages.

The U.S. Court of Appeals for the Ninth Circuit later reduced that punitive damage award to $2.5 billion on the grounds that ExxonMobil's conduct was not so reckless as to justify the jury's award. The district court's award represented about five times the amount of economic damage suffered by the approximately 32,000 plaintiffs in the case as a resut of the Exxon Valdez incident.

The Supreme Court did not agree to hear Exxon's argument that the U.S. Constitution's due process clause was violated by the punitive damage award. Instead, the Court will decide whether federal maritime law, a body of law made by judges, permits federal juries to grant punitive damages at all.

The Court will not be considering whether damage to the physical environment and biological integrity of Prince William Sound justifies punitive damages. The question of the compensation Exxon must pay for those consequences of the spill was resolved in a settlement of a separate lawsuit. See Baker v. Hazelwood (In re the Exxon Valdez), 270 F.3d 1215 (9th Cir. 2001).

Only eight of the Court's nine justices will hear the case. Justice Samuel Alito recused himself because he owns shares of Exxon Corp. stock.

Exxon says it has paid $2.2 billion in cleanup expenses, $1 billion to settle claims made by the federal government and the state of Alaska, and $300 million to compensate thousands of Alaskan people and businesses affected by the oil spill.

A link to Exxon Corporation's petition for certiorari is here. The response to that petition is here. Exxon's reply in support of its request that the Court here the case is here.