Climate Change and the Courts: Court Rejects Latest Industry Ploy to Block Carbon Pollution Limits

In the latest court ruling on climate change, the federal court of appeals in Washington refused to block clean air safeguards that cut dangerous carbon pollution from the biggest new power plants and other industrial facilities.

The court on Friday rejected industry efforts to block Clean Air Act permit provisions that require large new industrial facilities to use the "best available" pollution controls for heat-trapping carbon dioxide and five other greenhouse gases.

The ruling means that industries building big new power plants and other industrial facilities will continue to be required to install and use modern, state-of-the-art pollution controls to curb their climate-changing pollution, just as they must for other kinds of dangerous air pollution.

(It's easy to get confused between the Clean Air Act's permit requirements, which apply only to big new sources, and the law's standard-setting provisions, which EPA is using now to establish the Clean Power Plan to cut carbon pollution from the nation's 1500 existing power plants. I've explained the differences here. The standard-setting provisions are by far the more important, but EPA's court victory on the permit provisions is significant in its own right.)

So here's the background.

Last June, the Supreme Court ruled that large new plants which require clean air permits must install the "best available control technology" (or BACT) for their carbon pollution. Justice Antonin Scalia, who wrote the opinion in Utility Air Regulatory Group v. EPA upholding the BACT-for-carbon requirement, said that "EPA is getting almost everything it wanted in this case."

EPA's win on the BACT requirement for big new sources capped off its victory on other issues in the lower court. The U.S. Court of Appeals for the District of Columbia Circuit (where the case goes by the name Coalition for Responsible Regulation v. EPA) had upheld EPA's "endangerment determination" (the finding that carbon pollution drives dangerous climate change) and the agency's landmark clean car standards (cutting new cars' carbon pollution in half, and doubling their miles-per-gallon, by 2025).

The Supreme Court sent the case back to the D.C. Circuit to clean up odds and ends, and that should have been the end of it.

But the losing parties made one more stab to convert their defeat into victory. Although companies have been getting BACT permits for carbon pollution since 2011, the industry lawyers asked the appeals court to halt those requirements until EPA issued another set of rules to establish levels of carbon pollution considered "de minimis," or too small to matter.

It's pretty technical - and in Latin no less. But if the industry lawyers had got their way, big new plants could have been built without any limits on their dangerous carbon pollution for years to come.

The D.C. Circuit rejected this last Hail Mary pass in its brief ruling today. The court told EPA to "consider whether any further revisions to its regulations are appropriate in light of UARG v. EPA ..., and if so, undertake to make such revisions."

Here's the important point: While EPA considers these questions, the Clean Air Act's "best available control technology" requirements remain fully in effect for carbon pollution, just as for any other dangerous pollutant.

That's another important court victory for the fight against climate change, for EPA and the Clean Air Act, and - most importantly - for all of us.